Scottish Land Court and the Lands Tribunal for Scotland: consultation analysis

Question 2

If there is a decision to merge the Scottish Land Court and the Lands Tribunal for Scotland, do you consider that the merged body should be a court or a tribunal?

Court	Tribunal	Not answered
30	6	22
51.7%	10.3%	38%

It will be noted that the overwhelming majority (83.3%) of those who answered this question on whether an amalgamated body should be a court or a tribunal considered that it should be the former.

Those that favour that the amalgamated body should be a court

Many of those who gave reasons for their view that if there is to be an amalgamation of the Land Court and the Lands Tribunal, the resultant body should be a court as a court has higher status. For example, the ERCS stated that "as far as the general public is concerned, the concept of a court is more familiar and suggests greater status and authority than that of a tribunal, so ERCS would on balance prefer the merged body to be a court". Professor Colin Reid, who favoured a merger, stated the view well:

"A lot depends on the regard in which the body is held, which is not determined by the label alone, but I suspect that it is more positive to elevate all aspects to a court rather than running the risk of being thought to diminish the work through what was a court becoming 'merely' a tribunal."

Others also considered that a court has greater status and powers and is more authoritative. Perhaps it is important to note the comment of the Senators of the Court of Justice:

"We would prefer the new body to be a court. It should generally have the authority and powers of a court. Any perceived reduction in the status of the Land Court should be avoided, given that it enjoys the confidence of the Highland community."

The Faculty, which also opposed the amalgamation, considered that "it would be a retrograde step to lose the Land Court which would send the wrong signals to the communities it effectively serves". Robert Robertson and Kieran Buxton expressed a similar view.

Other respondents also suggested that it was important to consider the current Land Court users in making the decision, particularly those in the crofting and agricultural communities. For example, the Law Society wrote:

"We consider it important for the functions of the Land Court to be dealt with as a court rather than as a tribunal. The Court is held in high regard and for many people, particularly in relation to agricultural tenancies and crofting matters, the Court plays a very important role."

Inksters Solicitors, Scottish Land & Estates, the Crofting Commission, the Scottish Crofting Federation, and the Scottish Tenant Farmers Association echoed this view.

Lord McGhie referred to the high regard in which the Land Court is held and considered that the work of the Lands Tribunal was often quite complex and appropriate for a court:

"The Land Court has a well-recognised and well regarded status as a court. Much of the work of the LTS is close to the work of the Court of Session in difficulty and importance and it is entirely appropriate that such work be seen to be dealt with by a court."

Finally, three of the respondents considered that a court was more suitable for the extra functions that they would like to see the amalgamated body take on. Professor J Campbell Gemmell advocated that the resultant body take on the functions of an environmental court:

"A court is simpler and clearer to the public and of suitable status for serious environmental cases to be addressed there. It is also more in keeping with proposals and suggestions made for Scottish environmental governance bodies in the context of what is needed for all related matters to be considered and to fulfil the needs of post-Brexit institutional arrangements."

The ERCS is also an advocate of the amalgamated body taking on the functions of an environmental court and considers that a court is more suitable for that purpose as such a court is also likely to be a more suitable forum than the Court of Session for judicial review of environmental decisions and the sheriff court for the prosecution of environmental offences.

The other respondent that would prefer a court as it considers a court more appropriate to the extra functions a merged body might receive was ScotWays.

"With reference to our answer to question 3 below, as we are supportive of the potential transfer of Section 28 cases under the Land Reform (Scotland) Act 2003 moving from the sheriff court to an expanded Land Court, we consider that the merged body should be a court, not a tribunal."

Section 28 of the 2003 Act is concerned with judicial determination of existence and extent of access rights and rights of ways.

Those that favour that the amalgamated body should be a tribunal

Only four respondents out of the six who would prefer the merged body to be a tribunal gave reasons.

Two of the respondents took the view that a tribunal is less formal than a court and that as a result, it was a more user-friendly option. Stirling Council was one:

"It is preferable to make proceedings as informal as possible: avoids formality of traditional court procedures."

The other was the barrister, Andrew Francis:

"My experience is that for clients a tribunal (as opposed to a court) is a more user friendly concept and experience."

The third respondent was concerned about the composition of the Land Court:

"Despite being a court, the Land Court consists principally of lay members with no legal qualification. Nor is their qualification as agricultural experts clear. As they act as both 'judge and jury' this is unsatisfactory both in terms of qualification and the pressure placed on the Chairman."

Finally, Colin Gibson considered that members of a tribunal might be held more accountable for their decisions than members of a court:

"Tribunal, as therefore the remote possibility of holding to account members may be simpler than the questioning judiciary who are seldom in receipt of good press in Scotland."