Crofting: Securing the Future of the Scottish Highlands Through Legislative Challenge and Cultural Legacy

• Author: Cynthia A. Lohman
• Position: J.D. 2006, University of Iowa College of Law
• Pages: 664-705

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Croft (krôft): an area of land surrounded by legislation.¹

Crofting has played a vital role in the cultural, economic and social history of the Highlands and Islands. It is my firm view that it should continue to do so for many generations to come. Securing that future is at the heart of our proposed Crofting Reform.²

There is a perception in the crofting community that there is a move to get rid of the crofting system. . . . This perception is not dispelled by this Bill, which . . . is likely . . . to foster the gradual loss of this unique system.³

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I Introduction: The Threat to Crofting

Crofting is a system of land tenure that exists only in the Highlands and Islands of western Scotland, with a basis in traditional land use practices of the Scottish clan system. Although crofting communities differ throughout the seven crofting counties,⁴ crofters share a culture, history, and often language that binds them in a cohesive unit.⁵

Crofting is characterized by small individual landholdings and common grazing areas on land of marginal agricultural value, held in heritable tenancy. It may also be distinguished by the amount of protective legislation enacted to guard the rights of crofters and maintain this system of land use. From the enactment of the 1886 Crofters Holdings (Scotland) Act, the primary purpose of the legislation has been to protect crofters and their unique way of life. No fewer than thirty-seven acts pertaining directly to crofting have been passed.⁶

Currently, however, a bill has been introduced to the Scottish Parliament with the potential to threaten the continuation of these distinctive traditional practices. Specific provisions within the Crofting Reform etc. Bill⁷ (Introduced Bill) provide for deregulating designated crofting areas, which will allow market forces to influence the purchase of croft tenancies. The result will be the fractionation of croft land, housing development on higher-quality agricultural land, and eventually the demise of crofting.⁸

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Crofters identified these concerns during the first publication of the consultation paper (the pre-draft request for comment), and again following the publication of the Draft Crofting Reform (Scotland) Bill [Draft Bill], when the Bill still did not reflect these concerns.⁹ Both individuals and representative non-governmental organizations voiced these trepidations. Among these were the Scottish Crofters Foundation (SCF) and the Highlands & Islands Enterprise, an organization with the mission of promoting sustainable economic development in the crofting counties.¹⁰ Following a Parliamentary business debate on the future of crofting, the Deputy Minister for Rural Development formed an advisory Reference Group to discuss the legislation, the impact it might have, and possible amendments to the Draft Bill.¹¹

Although some consideration was paid to crofters' concerns between the Draft Bill and the Introduced Bill, it is troubling that such threatening proposals would even have been included in a bill designed to better the crofters' situation. Crofters have representation in the Scottish Parliament, yet may not have the political strength to defeat the bill or compel changes that are necessary to preserve crofting.

This Note examines the options crofters may have for protection from this and future legislation. The first section contains a history of crofting as a means of introduction to the cultural significance of crofting and the political recognition of its importance. A discussion follows of the challenge crofters may mount to the proposed legislation, as incompatible with the European Convention on Human Rights [the Convention] as incorporated into the laws of the United Kingdom in both the Human Rights Act 1998, and the Scotland Act 1998. Finally, the Note then considers whether crofters can utilize the current trends in European politics favoring regional cultural protections by seeking a recognized status as a national minority to secure the right to a greater degree of autonomy over the usage of land.

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II About Crofting

The Crofters Holdings (Scotland) Act 1886 defined a croft as "[A]ny piece of land held by a crofter, consisting of arable or pasture land . . . immediately preceding the passing of this Act, including the site of the dwelling house and any offices or other conveniences connected therewith, but does not include garden ground only, appurtenant to a house."¹²

While a croft is the land itself, it often comes with other pertinent rights, including common grazing rights, peat-cutting rights, boat access rights, and the right to collect seashells (used as fertilizer on the common grazing lands and planted fields) and seaweed, once of great importance as a supplemental income from kelping for colored glass production.¹³

Traditionally, an individual landowner with large estates owned a croft. The landowner's holdings were arranged in crofting communities or townships, usually a number of homes situated in small groups along a single road on the high ground.¹⁴ Landowners today can be traditional large estate-owners, owners of individual crofts, the government, corporations, or crofting communities. Crofters rent their tenancies on an annual basis for an agreed upon fair price.¹⁵ Landlords often retain mineral, sport, and fishing rights to their land, while crofters retain rights to make improvements, including the right to erect dwelling structures, and to be compensated for any such improvements should they assign or renounce their tenancy.¹⁶

The 17,700 existing crofts comprise approximately one-third of all the agricultural holdings in Scotland.¹⁷ There are about 33,000 people that live in 11,500 crofting households.¹⁸ Crofting is not a full-time job. ThePage 668 vast majority of crofters have other occupations.¹⁹ In the past, the croft has served as the base of the crofter's economy, but employment other than the agricultural pursuits of the croft has always been necessary for survival. Today, a crofter receives agricultural subsidies and development support through domestic and European Union government programs.²⁰

A Prehistory to Legislation: The Development of Crofting

Crofters are the descendants of some of the earliest residents of the Highlands and Islands. The Scot(t)i (possibly meaning pirates) were the Dál Riata-Gaels from northern Ireland.²¹ There is some disagreement as to whether the Scoti invaded the land that is now Scotland in the Sixth Century and set up a homeland²² or whether there had been contacts for a millennium, resulting in a flourishing of their kingdom on the island of Argyll at that time.²³ The Scoti united with the neighboring kingdoms of Picts, Angles, and Britons by the late Tenth Century to fight the invading Vikings and later the Normans.²⁴ During these battles, lands were taken from pro-English landowners and distributed to Scottish patriots, forming the basis of the Scottish clan system.²⁵

The rise of the clan system in the Highlands was the beginning of a cultural separation between the traditionally Gaelic Highlands and the more English Lowlands. Land was owned by the clan and democratically elected leaders held the clan lands in duthchas, heritable trusteeship of the collective heritage of the clan.²⁶ Democratically elected clan chiefs were required to promote security of land possession for their clan andPage 669 associates and care for the well being of clan members in exchange for military support and social allegiance.²⁷

Beginning in the Fourteenth Century, the introduction of feudal land ownership, giving the power of "landlord" to clan chiefs, precipitated the demise of the clan system.²⁸ Legislation that concentrated ownership and power of clan lands in chiefs restricted traditional communal rights in the land, such as hill grazing and fuel collection.²⁹ Market forces and social pressures contributed to the decline of the clan chiefs' responsibilities to their clans into the late Seventeenth Century.³⁰

Around the beginning of the Eighteenth Century, changes in legislation made it easier for the clan leaders to lease land to the highest bidder, leading to voluntary emigration of clan members in 1730. The final blow to the clan-based society of the Highlands came soon thereafter, following the 1745 defeat of the Jacobite supporters of the Catholic Stuart...