The future of the Land Court and the Lands Tribunal: consultation

Chapter 2: Background to the proposal to amalgamate the Land Court and the Lands Tribunal

5. During the last 12 years, the landscape of civil courts and tribunals in Scotland has arguably undergone the most radical and extensive change it has ever experienced. The reforms started with the Judiciary and Courts (Scotland) Act 2008 ("the 2008 Act") which contained a statutory guarantee of judicial independence^[1], appointed the Lord President of the Court of Session as Head of the Scottish Judiciary^[2], and created a body corporate known as the Scottish Court Service ("the SCS") chaired by the Lord President^[3].

6. Subsequent changes were to a large extent driven by the recommendations of the 2009 report of the Scottish Civil Courts Review^[4] (“the Gill Review”) chaired by the then Lord Justice-Clerk Gill and culminated in the enactment of the Courts Reform (Scotland) Act 2014. This Act gave effect to many of the recommendations in the Gill Review, including the unification of Scotland's courts and tribunals as the Scottish Courts and Tribunals Service (the "SCTS") under the leadership of the Lord President and the governance of the SCTS Board^[5].

7. The process of civil justice reform was not confined to the courts; it also affected the devolved Scottish tribunals. The Tribunals (Scotland) Act 2014 ("the Tribunals Act") created a new, simplified statutory framework for tribunals in Scotland, bringing existing jurisdictions together and providing a structure for new ones. The Act created two new tribunals, the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. The Lord President is the head of the Scottish Tribunals and has delegated various functions to the President of Scottish Tribunals. The Upper Tribunal for Scotland hears appeals on decisions of the chambers of the First-tier Tribunal for Scotland. In terms of section 27 of and schedule 1 to the Tribunals Act, the Lands Tribunal is one of the tribunals on the list for transfer into the new structure, but this has not yet taken place^[6]. However, its staff have been employees of the SCTS since 1 April 2015^[7].

8. It should be noted that schedule 1 of the Tribunals Act can be modified by way of regulations to allow both the addition and removal of tribunals from the list.

9. By contrast, the Land Court is specifically excluded from the provisions of the Tribunals Act and cannot be added to the list in schedule 1. The Land Court was also originally excluded from the list of the Scottish courts to which the 2008 Act applies and only its Chair was a judicial office holder for the purposes of the 2008 Act. However, that position was altered on 1 April 2017 by virtue of the Judiciary and Courts (Scotland) Act 2008 (Scottish Land Court) Order 2017. As a result the Land Court is now included on the list of Scottish courts to which the 2008 Act applies and the offices of Chair, Deputy Chair, and member are all now judicial office holders^[8].

10. The result of these changes is that the SCTS now has responsibility for both the Land Court and the Lands Tribunal. It is important to note, however, that whilst the SCTS is the administrative body that supports the Lands Tribunal, the Lands Tribunal is not at present formally within the body of the Scottish Tribunals.

Previous consideration of unification

11. The amalgamation of the Land Court and the Lands Tribunal is not a new idea. The case for combining the judicial headship of both bodies and also for a combined membership was argued by R P Fraser of the Scottish Home and Health Department in a memorandum to the government of the day as long ago as February 1975. That memorandum was written in anticipation of Lord Birsay's retirement as Chair of the Land Court and it led to that post and the Presidency of the Lands Tribunal being unified in the person of Lord Elliott. Although unification did not go further at that time, the idea was not dropped in the years following Lord Elliott's appointment. In particular it was examined as part of “a programme of work to improve performance and value for money in non-departmental public bodies” announced by the government in November 1984^[9]. What was contemplated then was the assimilation of the Land Court into the Lands Tribunal^[10].

12. Since this would have involved the abolition of the Land Court, with its long tradition of serving the crofting and wider agricultural community, it is not surprising that the Report of the Review of the Scottish Land Court and Lands Tribunal Scotland came to the following conclusion: “In all the circumstances, the potential benefits of a radical reform of the Court would appear to be outweighed at present by the disadvantages and difficulties associated with such a course of action.”^[11] Among these disadvantages and difficulties was the controversy that any proposal to abolish the Land Court was likely to cause^[12].

13. More recently, as part of its survey of the court landscape generally, the Gill Review commented on the role of the Land Court^[13]. Having narrated the origins of the Land Court and noted that it had been set up with a Chair having the status of a Court of Session judge, the Review report stated the following^[14]:

“The reputation of the court has grown under a succession of distinguished chairmen in the last 40 years. The modern extensions of its jurisdiction reflect the confidence that the court enjoys from litigants and practitioners.

“In consequence of its clearly delimited subject areas, the flexibility of its procedures and the fact that most of the lawyers who practise in it are experienced in agricultural law, the Land Court has become a model of a specialist court.

“None of our respondents proposed any reforms to the jurisdictions and procedures of the Land Court. We propose none.”

14. The special character of the Land Court and its practical value was also emphasised by Lord Gill as Lord Justice-Clerk in the case of Jardine v Murray^[15].

“The Land Court's approach to fact finding has two special features; namely, its flexible and informal approach to the evidence and its application to the fact-finding process of its own knowledge and expertise. The Land Court is not an ordinary court of law. It is a specialist court whose members have expert knowledge of, inter alia, crofting agriculture and the social and economic conditions and customs in the crofting communities. It also has the advantage in most cases of carrying out a formal inspection of the land to which the dispute relates. The inspection is generally a primary evidential source (cf. Macpherson v Shareholders in Achintee Common Grazing).

“Crofting cases are dealt with at first instance on circuit by a Divisional Court consisting of a single member, who is usually one of the practical members of the court. The Divisional Courts have a unique body of expertise and understanding with which to deal with questions of the kind that this case has raised.

“It is with these considerations in mind that, in my opinion, we should assess the adequacy of the Divisional Court's findings and the criticisms of the Full Court's decision that are made in this appeal.”

15. In a concurring judgment in the same case, Lord Malcolm said that “unlike the Land Court, the Court of Session is not an expert tribunal in respect of the matters under consideration, and so should be careful to avoid trespassing on the Land Court's jurisdiction” (para 80).

16. The Scottish Government has taken note of the previous considerations of a merger of the two bodies and considers that if the two bodies are to become one, historical, political, legal and logical considerations concur in pointing to incorporation of the Lands Tribunal into the Land Court, rather than the other way round. The historical role of the court as the protector of tenants’ rights goes back to the early days of crofting legislation, around the turn of the early 20^th century, has given it a very important part in Scottish legal history. This reads across into the political domain in which there would be strong resistance to the abolition of the court. The legal and logical considerations are the court’s place in the hierarchy of Scottish Court (on a par with the Outer House of the Court of Session and, therefore, higher than any of the tribunals). It might be seen as illogical to abolish the senior and more historic body in favour of the junior body.

17. However, another option would be to incorporate the Land Court into the Lands Tribunal as was proposed in the 1970s, and we would be pleased to hear from you if you favour this possibility together with your reasons for supporting this option (see question 2).

The present position

18. The present position is that since 1978 the two bodies have been led by the same person although that is not a statutory requirement. They both occupy premises on the third floor of George House, Edinburgh but are not otherwise integrated other than by way of a limited sharing of administrative functions such as mailroom tasks and photocopying.

19. The Land Court has, in addition to its Chair, a part-time Deputy Chair, two part-time agricultural members, a Principal Clerk plus four members of staff (three full-time and one part-time).

20. The Lands Tribunal is currently composed of a President and three other members. The number of member posts is determined by the Scottish Ministers, though the number of members which are to be legal members is to be determined by the Lord President of the Court of Session. All members are appointed by the Scottish Ministers on the recommendation of the Lord President under section 2^[16] of the Lands Tribunal Act 1949^[17]. The Lord President, in making his recommendations, must consult the Scottish Branch of the Royal Institution of Chartered Surveyors in respect of any member appointment other than the President. The President of the Lands Tribunal must be legally qualified having previously served in judicial office, or having been an advocate or solicitor^[18]. At present, the Lands Tribunal has a full-time legally qualified member, two part-time surveyor members (Fellows of the Royal Institution of Chartered Surveyors), a Clerk and two full-time members of staff.