FREE CHAPTER from ‘A Practical Guide to Crofting Law’ by Brian Inkster

CHAPTER ONE

CROFTING LAW HISTORY
AND LEGISLATION

Highland Clearances and the Crofters’ War

Crofting Law came about as a result of the Highland Clearances that were carried out during the 1800s. Landowners cleared tenants from their land, to make way for large scale sheep farms and deer forests, sometimes with a barbarity that left people homeless and was known to result in the death of the young or infirm shortly on the back thereof.

Often these displaced tenants emigrated from Scotland for a new life in Canada, the USA or Australia.

The unrest arising therefrom became known as the ‘Crofters’ War’ of the 1870s and 1880s.

In 1874 an attempt to remove Bernera crofters from grazing land on the Isle of Lewis to inferior land on the Island of Great Bernera was met by successful resistance and the acquittal of three crofters charged with assault against a sheriff officer.

From 1879 to 1882 there was unrest in Lochbroom in Wester Ross where the eviction of crofters resulted in media support and it being reported that Highlanders resident in London had expressed their deepest sympathy with this oppression.

The culmination of the Crofters’ War was undoubtedly an incident at Braes on the Isle of Skye in 1882. Crofters were refusing to pay rents due to the loss of common grazing land. A sheriff officer sent to serve eviction notices for non-payment of the rent was surrounded by the crofters who put the papers on a heap and set fire to them. By doing so the crofters committed the crime of deforcement. Fifty policemen were despatched from Glasgow to arrest the perpetrators. The crofters resisted with sticks and stones in what became known as the ‘Battle of the Braes’.

There were also altercations between police and crofters at Glendale on the Isle of Skye resulting in a gunboat being despatched with a civil servant on board whose task was to try to persuade Glendale men to submit to the authority of the law. Four did so, were found guilty and given jail sentences of two months in Edinburgh in March 1883. But on being released from jail they returned to their crofting township in triumph as the ‘Glendale Martyrs’.


The Napier Commission

As a result of these and other similar incidents of unrest the UK government initiated the Napier Commission “to inquire into the conditions of the Crofters and Cottars in the Highlands and Islands of Scotland and all matters affecting the same or relating thereto”. The first hearing of this Royal Commission into crofters’ grievances took place at Ollach Schoolhouse at Braes on 8 May 1883.

From then until 26 December 1883 the Commission travelled extensively around the Highlands and Islands of Scotland holding 69 days of public hearings in some of the remotest parts of the country including even visits to the islands of St Kilda and Foula. They questioned 775 people, asking 46,750 questions in total.

Crofting Legislation

The inquiry led to the passing of the Crofters Holdings (Scotland) Act 1886 which gave crofters security of tenure, the right to a fair rent (with reviews every seven years) and the right to claim compensation for permanent improvements.

Various Acts of Parliament followed with perhaps the most significant being the Crofting Reform (Scotland) Act 1976 which gave crofters an absolute right to purchase their croft house and garden ground and the ability (but one that in certain circumstances can be blocked by a landlord) to purchase their croft.

In 1993 all existing crofting legislation was brought together (consolidated) into one piece of legislation: the Crofters (Scotland) Act 1993 (“the 1993 Act”).

Following on from that consolidating Act there has been further legislation affecting crofting:-

  • Transfer of Crofting Estates (Scotland) Act 1997 (“the 1997 Act”)

  • Land Reform (Scotland) Act 2003 (“the 2003 Act”)

  • Crofting Reform etc. Act 2007 (“the 2007 Act”)

  • Crofting Reform (Scotland) Act 2010 (“the 2010 Act”)

  • Crofting (Amendment) (Scotland) Act 2013 (“the 2013 Act”)

  • Community Empowerment (Scotland) Act 2015 (“the 2015 Act”)

  • Land Reform (Scotland) Act 2016 (“the 2016 Act”)

There has also been minor or consequential amendments made to the 1993 Act by the following legislation:-

  • Requirements of Writing (Scotland) Act 1995

  • Planning (Consequential Provisions) (Scotland) Act 1997

  • The Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999

  • Abolition of Feudal Tenure etc. (Scotland) Act 2000

  • Agricultural Holdings (Scotland) Act 2003

  • Title Conditions (Scotland) Act 2003

  • Civil Partnership Act 2004

  • The Civil Partnership Act 2004 (Consequential Amendments) (Scotland) Order 2005

  • Housing (Scotland) Act 2014

  • Bankruptcy (Scotland) Act 2016


Future Legislative Reform

Problems arose from the drafting of the 2010 Act that led to the apparent need for the 2013 Act (to allow owner-occupier crofters to decroft land). As a result of this it became clear to the Scottish Government that there were other problems in the existing legislation causing difficulties for crofters, landlords and others.

The Scottish Government gave a commitment to deal with those issues. The Crofting Law Group offered to assist in identifying the issues.

One Scotland: the Government’s Programme for Scotland 2014-15’ states:-

The Crofting Law Group will present a review of crofting legislation to the Scottish Government by the end of 2014, which will inform changes to both the legislation and administration of crofting that will be taken forward in early course. The Scottish Government will fully engage with the Crofting Law Group and wider stakeholder organisations to ensure buy-in to the changes.”

The Crofting Law Group arranged for the preparation of the ‘Crofting Law Sump Report’ by Derek Flyn and Keith Graham to collate and prioritise the issues and problems involved. That was presented to the Scottish Government in November 2014 with indications as to how the 57 issues/problems identified in the Report might be solved.

In their 2016 Manifesto the Scottish National Party (SNP) stated:-

Crofters have long been concerned at overly complicated and outdated legislation so we will modernise crofting law and make it more transparent, understandable and workable in practice.”

Having formed the new minority Scottish Government in 2016 the SNP put in place a Crofting Bill Team to fulfil their Manifesto pledge. The Bill Team carried out consultations surrounding the legislative change sought and data from those consultations was analysed and a report produced in early 2018 by an independent third party for consideration by Scottish Ministers.

Following on from that report Fergus Ewing MSP, Cabinet Secretary for the Rural Economy with responsibility for crofting, announced a two-phase approach to crofting law reform.

During the current Scottish Parliamentary term (i.e. before 6 May 2021) it is likely that a Bill will be introduced to fix many of the more straightforward problems identified in the ‘Crofting Law Sump Report’.

The second phase is longer term work, where Mr Ewing has asked his officials to continue with fundamentally reviewing crofting legislation to provide a solution to some of the more complex and challenging issues facing crofting, and what that might mean for how legislation is developed in future. This work has already begun but will be for a future Parliament to deliver.

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