1. This Bill was introduced on 2 June 2025. The lead committee is the Rural Affairs and Islands Committee.

2. The stated purpose of the Bill is to amend crofting law and to provide for the merger of the Scottish Land Court (“the Court”) and the Lands Tribunal for Scotland (“the Tribunal”) into an expanded Scottish Land Court (“the expanded Court”).

Crofting Reform

3. Crofts and crofting are a distinct form of land tenure in the seven Crofting Counties of Scotland - Argyll, Caithness, Inverness, Ross and Cromarty, Sutherland, Orkney and Shetland. A croft is generally a relatively small agricultural land holding which may or may not have buildings or a house associated with it.

4. The Scottish Government states that the Bill is to make improvements to the current crofting system by strengthening residency and land use enforcement. It considers that the proposed changes support its strategy for crofting and are not intended to be a significant reform of the system of crofting tenure.

Court and Tribunal Merger

5. The Court operates under the Scottish Land Court Act 1993 and deals with questions between landlords and tenants of agricultural land, including crofts.

6. The Tribunal was brought into effect by the Lands Tribunal Act (Appointed Day) (Scotland) Order 1971 and has an extensive range of jurisdictions, including the determination of disputed compensation for the compulsory acquisition, or loss in value, of land; the accuracy of the Land Register; and appeals against the valuation of land under the community right to buy.

7. The Bill seeks to amalgamate the two bodies into an expanded Court.

8. The Bill consists of 44 sections in 3 parts together with 2 schedules.

9. Part 1 of the Bill makes various changes to crofting law, by modifying the Crofters (Scotland) Act 1993 (“the 1993 Act”) and the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”). The Scottish Government states that it is seeking to make changes upon which there has been extensive stakeholder input and for which there is support across crofting communities. The provisions, it states, are intended to simplify complex legislation and streamline administrative processes; facilitate productive or environmental activities on the “inbye” (land for cultivation) and on common grazing land; and improve the effectiveness of the regulatory functions of the Crofting Commission (“the Commission”), the regulator for crofting in Scotland.

10. Part 2 of the Bill amalgamates the Court and the Tribunal. Schedule 1 sets out the expanded Court’s constitution including structural arrangements, jurisdiction and rules and procedure. The Scottish Government states that this part is not about reforming courts or judicial office in Scotland but rather seeks to merge two existing bodies and pool their existing functions and powers.

11. Part 3 contains the standard provisions at the end of a Bill.

12. The Bill confers ten delegated powers to Scottish Ministers and one delegated power to the Court of Session and these are discussed fully below.

13. The Scottish Government has produced a Delegated Powers Memorandum (“DPM”) which sets out its reasons for taking the delegated powers in the Bill and for the procedure chosen.

Section 1(3)(d) of the Bill inserting new section 5C(8B) into the 1993 Act – enabling environmental uses of crofts

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Affirmative

Provision  

14. Section 1(3)(d) of the Bill inserts new subsections (8A) and (8B) into section 5C of the 1993 Act.

15. Section 5C places a duty on crofters to cultivate and maintain their croft. Substituted section 5C(2) (substituted by section 1(3)(a) of the Bill) defines the duties as cultivating the croft, putting it to an environmental use, or putting it to another purposeful use. Every part of the croft capable of being used in these ways must be so utilised, and the croft must be kept in a fit state for cultivation.

16. New section 5C(8A) defines “environmental use” as a non-exhaustive list of examples which includes peatland restoration, habitat creation and restoration, water management, and the preservation, protection, restoration, enhancement or other improvement of the natural heritage of the environment. Any environmental use must be planned and managed in a way that does not adversely impact neighbouring land. New section 5C(8B) gives Scottish Ministers the power to modify the list of examples.

Committee consideration

17. The Scottish Government explains in the DPM that the reason for taking this power is that as the definition of “environmental use” is illustrative rather than exhaustive, it is appropriate for Ministers to have the flexibility to add, amend, or remove examples as circumstances evolve. This power, it states, ensures the legislation is responsive to future environmental challenges, technological advancements, and changing land use priorities; and supports the wider objectives of its land use and environmental policy, where they intersect with crofting.

18. The Scottish Government further explains that as the power affects substantive matters relating to what constitutes environmental use of a croft, any changes should be subject to thorough scrutiny. Also, as this power amends primary legislation, the use of the affirmative procedure is considered both necessary and proportionate. This approach, it states, ensures that any significant changes to the scope of the crofting duty, are made transparently and with appropriate parliamentary oversight.

19. The Committee finds this power acceptable. It considers that there is sufficient detail in new sections 5C(8A) and (8B) and in the DPM as to the rationale for this power, that it is clear and defined and allows for flexibility in the future. The Committee also agrees that the affirmative procedure is appropriate given this power can amend primary legislation and that this provides for appropriate parliamentary scrutiny.

Section 9(2)(e) inserting new subsections 19B(7) and (9) into the 1993 Act – meaning of “owner-occupier crofter” and “owner-occupied croft”

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Negative

Provision

21. Section 19B of the 1993 Act provides for the meaning of the terms “owner-occupier crofter” and “owner-occupied croft.” Three conditions must be met if a person is to be an owner-occupier crofter. The first condition is that the person is the owner of the croft.

22. Section 9 of the Bill inserts new subsections 19B(7) to (9) into the 1993 Act. 19B(7) provides for Scottish Ministers to make regulations about the circumstances in which the first condition is met, including about what land or rights may be considered as a croft for the purposes of that condition. 19B(8) requires Ministers to consult with the Commission before making such regulations. 19B(9) provides for regulations to include such consequential, transitional, transitory or savings provisions as Ministers consider necessary or expedient.

Committee consideration

23. The Scottish Government explains in the DPM that the reason for taking the power is that section 3 of the 1993 Act provides for the meaning of “croft”, by reference to the types of holding which a “crofter” may have. The typical croft includes a dwelling, inbye land and a share of a common grazing right. The rights in respect of a particular holding may however be different, so that for example a holding may not include grazing land or a dwelling. This power will enable Ministers to make provision to clarify that the meaning of ownership of a croft, other than a typical croft, satisfies the first condition as to whether a person is within the definition of an owner-occupier crofter and can apply to the Commission to create a new croft.

24. Also, as the 1993 Act does not include any of the now standard ancillary powers, such powers are expressly provided for in connection with exercising this power to make regulations. The Scottish Government justifies ancillary powers in this case as they will enable Ministers to make regulations that resolve technical issues that might otherwise require primary legislation.

25. The Scottish Government further explains that regulations made under this power are expected to deal with practical issues and not to raise any issues of principle. It therefore considers that the negative procedure is appropriate.

26. The Committee finds this power acceptable. It considers that there is sufficient detail in new section 19B(7) to (9) and in the DPM as to the rationale for this power (and for the connected ancillary powers), that it is clear and defined and allows for flexibility in the future. The Committee also notes that there is a requirement to consult with the Commission before making any regulations and agrees that the negative procedure is appropriate for this power.

Section 18(3) of the Bill inserting new section 50(10) into the 1993 Act – use of common grazings for forestry or environmental purposes

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Affirmative

Provision

29. Section 18(3) of the Bill substitutes a new section 50 into the 1993 Act, which provides for the use of common grazings for forestry, as at present, and in addition for environmental purposes.

30. New section 50(7) provides that using any part of the common grazing for an environmental purpose includes - but is not limited to - using the land for peatland restoration, habitat creation and restoration, water management, and the preservation, protection, restoration, enhancement or other improvement of the natural heritage of the environment.

31. New section 50(10) enables Scottish Ministers to modify subsection (7) to add, amend or remove a use.

Committee consideration

32. The Scottish Government explains in the DPM that the reason for taking the power is, as the definition of “environmental use” is illustrative rather than exhaustive, it is appropriate for Ministers to have the flexibility to add, amend, or remove examples as circumstances evolve. This, it states, ensures the legislation is responsive to future environmental challenges, technological advancements, and changing land use priorities. It also supports its wider objectives of land use and environmental policy, particularly where they intersect with crofting.

33. The Scottish Government further explains that, as this power affects what constitutes environmental use of a croft, any changes should be subject to thorough scrutiny. Also, as this power enables Ministers to modify primary legislation, the use of the affirmative procedure is considered necessary and proportionate. This approach ensures that any significant changes to the scope of the environmental uses of common grazings, are made transparently and with appropriate parliamentary oversight.

34. The Committee finds this power acceptable. It considers that there is sufficient detail in new sections 50(7) and (10) and in the DPM as to the rationale for this power, that it is clear and defined and allows for flexibility in the future. The Committee also agrees that the affirmative procedure is appropriate given this power can amend primary legislation and that this provides for appropriate parliamentary scrutiny.

Section 26(2)(d) of the Bill inserting new section 16(6A) into the 2010 Act – rectification of the Crofting Register

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Affirmative

Provision

36. Section 26(2) of the Bill amends section 16 and inserts a new subsection (6A) into the 2010 Act. Section 16 provides for the Keeper of the Registers of Scotland to amend the Crofting Register to make corrections to any typographical, clerical or administrative errors. The Keeper may do so on the application of (1) the original applicant where the error has arisen because of a mistake in the application; or (2) the Commission or the original applicant where the error has arisen because of a mistake by the Commission. Where an error arises because of a mistake by the Keeper, the Keeper may rectify this on application by any person or on their own initiative.

37. New subsection 16(6A) enables Scottish Ministers to specify further persons, or descriptions of persons, who are entitled to make an application to the Keeper to rectify the register under section 16.

Committee consideration

38. The Scottish Government explains in the DPM that the reason for taking the power is that section 16 of the 2010 Act only allows for rectification of the register by the original applicant, the Commission or the Keeper. However, Ministers consider it may be appropriate to allow other categories of person to instigate a rectification, for example, the executor of an original applicant. Also, as other categories of person are likely to evolve as more time passes from the original applicant, it is appropriate for Ministers to have the flexibility to add, amend, or remove classes of persons. This power acts as a contingency to ensure the legislation remains responsive to crofting practices relating to ownership and tenancies of crofts and reflects the importance of maintaining accuracy in the Crofting Register.

39. The Scottish Government further explains in the DPM that as this power affects the categories of person who can apply for the rectification of the register and enables Ministers to modify primary legislation, the affirmative procedure is considered necessary and proportionate. This approach ensures that any changes to the categories of person who may apply for rectification are made with appropriate Parliamentary oversight.

40. The Committee finds this power acceptable. It considers that there is sufficient detail in new section 16(6A) and in the DPM as to the rationale for this power, that it is clear and defined, is practical and allows for flexibility in the future. The Committee also agrees that the affirmative procedure is appropriate given this power can amend primary legislation and that this provides for appropriate parliamentary scrutiny.

Section 29(3) of the Bill inserting new section 55A into the 1993 Act – public notification of applications

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Negative

Provision

42. Section 29(3) of the Bill substitutes a new section 55A into the 1993 Act, enabling Scottish Ministers to make regulations about the public notification of applications to the Commission under both the 1993 Act and the 2010 Act. The types of applications are many and include, for example, creating a new croft, change of use and change of ownership.

43. Regulations may include provision on the methods of giving notice, the form and content of any notice, the duration for which a notice must remain publicly available, and any fees the Commission may charge for publishing a notice.

44. Before exercising this power, Scottish Ministers must consult the Commission. The power also extends to making incidental, supplementary, consequential, transitional, transitory, or saving provision, and to making different provision for different purposes.

Committee consideration

45. The Scottish Government explains in the DPM that the reason for taking this power is that the existing section 55A restricts public notification to the publication of notices in one or more local newspapers, which is considered prescriptive and financially burdensome. This power allows the use of other methods of communication, including digital platforms, and flexibility ensures that the legislation remains responsive to technological developments. This power will support the adoption of modern public notification procedures by enabling a transition to updated methods of notification.

46. The 1993 Act does not include any of the now usual ancillary powers (such as those in section 54 of the 2010 Act), and so such powers are provided for in connection with exercising this power to make regulations. The Scottish Government considers that ancillary powers are justified as they will allow Ministers to make regulations resolving issues related to notices and notification which, although technical in nature, might otherwise require primary legislation.

47. The Scottish Government further explains that the regulations concerning public notification are expected to address procedural and technical details and are not expected to raise any substantive issues. Further, the inclusion of a consultation requirement ensures transparency, accountability, and well-informed decision-making by engaging the relevant stakeholder. Scottish Ministers consider the negative procedure appropriate, as it allows Parliament to maintain oversight without requiring the use of parliamentary time on procedural matters.

48. The Committee finds this power acceptable. It considers that there is sufficient detail in new section 55A and in the DPM as to the rationale for this power (and for the connected ancillary powers), that it is clear and defined and allows for flexibility in the future. The Committee also notes that there is a requirement to consult with the Commission before making any regulations and agrees that the negative procedure is appropriate for this power.

Section 38 – Power to make further provision in connection with the merger of the Court and the Tribunal

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Affirmative if amending primary legislation, otherwise negative

Provision

51. Section 38 enables Scottish Ministers to make further provision in connection with the merger of the Court and the Tribunal into the expanded Court.

Committee consideration

52. The Scottish Government explains in the DPM that section 38 allows Scottish Ministers to make further provision in connection with the transfer of the jurisdiction, functions, staff, property, etc of the Tribunal. This is because matters often come to light at a later stage on implementation of the Bill. For example, issues may arise concerning the transfer of cases or the transfer of staff and this section allows Scottish Ministers to make further provision to address those issues.

53. The Scottish Government further explains that regulations made under this section which add to, replace or omit the text of primary legislation are subject to the affirmative procedure. Otherwise, where the regulations are limited in scope and effect, for example, they relate solely to administrative matters, they are subject to the negative procedure.

54. The Committee finds this power acceptable. It considers that there is sufficient detail in section 38 and in the DPM as to the rationale for this power, that it is clear and defined, is practical and allows for flexibility in the future. The Committee also agrees with the specified parliamentary procedures which are dependent on whether the power is exercised to amend primary legislation or not.

Section 42 of the Bill – Ancillary provision

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Affirmative if amending primary legislation, otherwise negative

Provision

56. Section 42 enables Scottish Ministers to make any incidental, supplementary, consequential, transitional, transitory or saving provision as they consider appropriate for the purposes of, or in connection with, or for giving full effect to the Bill. The regulations may make different provision for different purposes and modify any enactment.

57. This power compliments the powers in respect of ancillary matters considered above.

Committee consideration

58. The Scottish Government explains in the DPM that, as with any new body of law, the Bill may give rise to the need for a range of ancillary provisions to ensure its effective implementation. While the Scottish Government has carefully considered the provisions of the Bill, it is recognised that unforeseen issues or necessary adjustments may arise once the legislation is in operation. The power to make further provision is therefore considered essential to ensure that the policy objectives of the Bill can be fully achieved, and that any technical, operational, or implementation matters can be addressed without delay.

59. Powers of this nature are commonly included in legislation to provide Ministers with the flexibility to make timely and proportionate changes in light of practical experience. Without such a power, it may be necessary to return to Parliament with further primary legislation to address issues that are clearly within the scope and intent of the Bill. The Scottish Government considers this would not represent an efficient use of either Parliamentary time or Government resources.

60. The Scottish Government also acknowledges the potentially broad scope of this power, including the ability to modify primary legislation and to alter provisions within the Bill. However, it considers that the power is limited in its application as it may only be exercised for the purposes of, in connection with, or for giving full effect to any provision of the Bill. These safeguards ensure that the power is used appropriately and only in support of the Bill’s effective implementation.

61. The Scottish Government further explains that section 42(3) requires that regulations made in exercise of this power are subject to the affirmative procedure if they add to, replace or omit any part of an Act. Otherwise, such regulations will be subject to the negative procedure. This approach is commonly adopted for ancillary powers, and the Scottish Ministers consider that this is appropriate scrutiny in this case. It ensures that the Scottish Parliament can closely scrutinise and determine whether to approve any draft regulations that change the text of primary legislation before they can be made.

62. The Committee considers that this power is similar in terms to other ancillary powers that it has scrutinised in most Bills. The extent of the power is restricted as it can only be used for the purposes of giving full effect to the Bill as enacted and any provision made under it. The power also allows issues of an ancillary nature which may arise to be dealt with effectively by the Scottish Ministers. Without such a power, any changes would require to be made by primary legislation, which the Committee considers would not be an effective use of either the Parliament’s time or the Scottish Government’s resources.

Section 43 – Commencement

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Laid, no procedure

Provision

64. Other than sections 41 to 44, which come into force on the day after Royal Assent, section 43 allows Scottish Ministers to commence provisions in this Bill on such day as they may appoint by regulations. The regulations may include transitional, transitory or saving provision and may make provision for different purposes or areas.

Committee consideration

65. The Scottish Government explains in the DPM that it is standard practice for Scottish Ministers to take a power to bring provisions of a Bill into force at a time of their choosing, so that its provisions can be brought into force at an appropriate time. This enables any guidance, administrative measures or IT changes that are needed to give practical effect to a measure to be in place in advance of provisions coming into effect.

66. The coming into force of the Bill’s substantive provisions will also have implications for the operation of the expanded Court, for the parties involved in proceedings and for the members and staff. In order to give parties, members and staff sufficient notice and ensure that each body is prepared for the transition to the expanded Court it is important for Scottish Ministers to have the power to allow for the planning of an orderly and timely implementation and to commence the substantive changes when appropriate. Section 36(3) of the Bill provides that the merger will take place on the appointed day(s) as provided for in regulations made under this commencement section.

67. The Scottish Government further explains in the DPM that as is usual for commencement regulations, the default laying requirement applies in that commencement regulations are laid before the Parliament but are not subject to further parliamentary procedure. This is considered appropriate because the policy behind the provisions will have already been considered by the Parliament during the passage of the Bill.

68. The Committee agrees that it is standard to take a power at the end of a Bill to commence those sections where provision has not been made in the Bill for commencement. It is also standard that commencement regulations are laid before the Parliament but are not subject to further parliamentary procedure.

Schedule 1, Part 1, paragraph 2(8) – Appointment of members of the expanded Court

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Negative

Provision

70. This power enables Scottish Ministers to make provision regarding the eligibility for appointment of members (other than the Chair) of the expanded Court.

Committee consideration

71. The Scottish Government explains in the DPM that the Court and the Tribunal currently have different requirements for membership dependent on the range of skills, expertise and experience required for each jurisdiction. The expanded Court will be required to deal with all matters currently under the separate jurisdictions and the jurisdiction may be further expanded in future. This power enables Scottish Ministers to adapt the eligibility requirements of members to meet the needs of the expanded Court and to ensure that it can continue to operate effectively in the future. This will futureproof the legislation, and allow Scottish Ministers to respond to the experience of operating the expanded Court and changing circumstances, including any future changes to the jurisdiction.

72. The Scottish Government further explains that the negative procedure is considered appropriate as the power relates to the administration of the expanded Court i.e. the eligibility requirements in respect of its members.

73. The Committee finds this power acceptable. It considers that there is sufficient detail in the DPM as to the rationale for this power, that it is clear and defined and allows for flexibility in the future. The Committee also agrees that the negative procedure is appropriate for this power.

Schedule 1, Part 2, Paragraph 15(2) – power to adjust what is within the competence of the expanded Court and to modify any enactment in consequence of a change made to the competence and jurisdiction of the expanded Court

Power conferred on: Scottish Ministers

Power exercisable by: Regulations

Parliamentary procedure: Affirmative

Provision

75. This provision enables Scottish Ministers to modify what is within the competence and jurisdiction of the expanded Court. This may include modifying any enactment which is impacted by the change to the competence or jurisdiction of the expanded Court.

Committee consideration

76. The Scottish Government explains in the DPM that the Tribunal has a wide remit. The purpose of this provision is to allow for any matters which the Tribunal has jurisdiction over, which have not already been included in the jurisdiction of the expanded Court, to subsequently be included. The power also allows for other enactments to be modified if they are impacted by the change to the expanded Court’s jurisdiction. For example, if an enactment referred to the right to bring a matter before the Tribunal and, subsequently, that jurisdiction is transferred to the expanded Court, the enactment can be modified with references to the Tribunal substituted for references to the expanded Court.

77. The Scottish Government states that the purpose of this provision is not to provide a gateway to significantly alter the jurisdiction of the expanded Court. However, it is possible that the expanded Court will take on new functions and to future proof the legislation, this power is required to provide the required flexibility.

78. The Scottish Government further explains that regulations made under this power are subject to the affirmative procedure. This provides the Scottish Parliament with the appropriate level of scrutiny for the significance of the legislation which may be made under this paragraph modifying the jurisdiction of the Court.

79. The Committee finds this power acceptable. It considers that there is sufficient detail in paragraph 15(2) and in the DPM as to the rationale for this power, that it is clear and defined, is practical and allows for flexibility in the future. The Committee also agrees that the affirmative procedure is appropriate given this power can modify the jurisdiction of the expanded Court and that this provides for appropriate parliamentary scrutiny.

Schedule 1, Part 2, Paragraph 26 – power to make provision regarding practice or procedure of or about the expanded Court

Power conferred on: Court of Session

Power exercisable by: Act of Sederunt

Parliamentary procedure: None

Provision

81. This provision enables the Court of Session, by Act of Sederunt (procedural rules), to make provision regarding the practice and procedure of the expanded Court.

Committee consideration

82. The Scottish Government explains in the DPM that the administrative detail of the expanded Court’s procedural rules is better suited for subordinate legislation. This power will also provide the Court of the Session with the flexibility to ensure that the procedure followed in the expanded Court is fit for purpose and efficient.

83. The Scottish Government further explains in the DPM that to preserve court procedures from political interference in accordance with the principle of the separation of powers, Acts of Sederunt are usually not subject to Parliamentary scrutiny.

84. The Committee agrees that that it is standard that the administrative detail of procedural rules is set out in Acts of Sederunt and are usually not subject to Parliamentary scrutiny.