Meeting of the Parliament 19 March 2026 [Draft]
I am happy to support Alasdair Allan’s amendment 6, for the reasons that he has set out. The link between owner-occupied crofts and grazing rights is a complicated area in which property law and crofting law intersect, so it is sensible for ministers to have regulation-making powers in case the provisions on the grazing shares of owner-occupied crofts require to be refined in the future.
My own amendments in the group also concern that connection between grazing rights and owner-occupied crofts. It is an area of law where the policy intention is clear and, I think, agreed by everyone involved, but the means of achieving it is definitely not simple.
A tenanted croft generally comes with an attached right to use common grazings and, in legal terms, the grazing right is a pertinent of the tenancy. Our policy is that grazing rights should stay attached to crofts, no matter what changes a croft goes through. It might be bought by its tenant and become an owner-occupied croft, and it might then be sold or even re-let to a new tenant. It might fall vacant and eventually be re-let by the Crofting Commission. However, the policy aim is that, no matter what happens to a croft, the grazing right should, by default, stay attached to it.
The only exception should be that, if there is a specific application to separate the grazing right from the croft, that should be treated like any other application to divide a croft. The separation may happen only if the Crofting Commission consents, and it will take account of the current and future interests of the crofting community, among other things, in its decision-making process. That is what sections 14A and 15 are designed to achieve.
However, because this is a complex area of law, officials have drawn on advice from a small group of stakeholders and experts, many of whom are practising crofting solicitors, to look closely at those two sections. I am extremely grateful to those people for giving up their time to help us to get this right. My amendments at stage 2, and now at stage 3, have been informed by those discussions between my officials and that group.
Amendments 7, 10 and 11 will clarify the wording of the bill but will not materially change the purpose of the provisions.
Amendment 8 will remove from the bill a change that we proposed to make to the right to buy an apportionment. That was never a core part of the provisions on retaining grazing rights with crofts and, following input from the group of advisers, I have decided that it is best not to venture into that territory without further examination of the legal implications of any proposed change.
Amendment 9 will clarify that, when an owner-occupied croft is let, an attached share may have one of two legal forms. It also covers the circumstance where the owner-occupier crofter is letting only part of the croft. In that circumstance, they will be able to specify whether the grazing right is attached to the part that is let or the part that is not. Again, however, that will be subject to the commission’s consent.
Amendments 12 and 14 will clarify who has the right to re-let a vacant grazings right. The Land Court has ruled that that should be the person who was the landlord of the inby croft when it was a tenanted croft, or their successor in title. Sometimes that person is not the same as the person who owns the land over which the grazing rights are exercised, and sometimes, perhaps after a passage of years, they cannot be traced. Amendment 14 provides that we will follow the Land Court’s principle whenever possible but that, pragmatically, we will allow the grazings owner to take over the role if need be.
Amendment 13 will allow a longer timescale for the letting of vacant shares in order to allow for the commission’s necessary exchanges with both the owner and the grazings committee.