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

Question 4

a. Please indicate your views on the proposal that the other legal member of the Lands Tribunal could be entitled to be appointed to hear a case from which the Chair and the Deputy Chair of the Land Court have had to recuse themselves.

b. Please indicate your views on the proposal that the Deputy Chair of the Land Court could be entitled to be appointed to hear a case from which the President and the other legal member of the Lands Tribunal have had to recuse themselves.

It will be noted that the overwhelming majority (86.1% and 88.6% respectively) agreed to proposals set out in the consultation. The reason why one person who objected in the case of 4a and did not answer 4b is that that respondent stated that the question was not applicable, "as I consider the SLC and LTS should be merged".

Those that agreed with the proposal

Twenty respondents gave reasons for their agreement with the proposals. Of that twenty, ten simply answered that the proposal was sensible, flexible or pragmatic. For example, one respondent stated:

"This is a good idea in my opinion as it represents a ready-made solution to the problem. There would be no need for ad hoc arrangements involving sheriffs principal and the experience of the Deputy Chair would be a suitable person to act in this capacity."

In its response, the Sheriffs' Association clarified that the qualifications required to be appointed as Deputy Chair also qualify the holder of that office to hear a case in the Lands Tribunal.

Some of the other respondents caveated their response. The ERCS saw that it is important "that the merged court is, and can be clearly seen to be, fully impartial and independent". It considered that it raised questions about the current judicial appointments system in respect of the two bodies and suggested that there should be a wider pool of candidates to increase diversity and reduce conflicts of interest. It concluded that "ERCS's view, should be satisfied by appointing specialist assessors to assist the merged court, as currently happens in the SLC".

Lord McGhie thought the proposals sensible, but that there must be flexibility "to make ad hoc appointments from elsewhere if appropriate" where there may be a "need for specialist legal knowledge outwith the expertise of a particular legal member". He went on to raise the problem of fixing diet dates which are suitable for all parties, lawyers, and expert witnesses. He concluded with a suggestion that retired members might also be used:

"Flexibility of membership - including use of recently retired members - would help avoid adding to that problem by lack of availability of a suitable court."

Inksters also offered an alternative option. They did not oppose the proposal in the consultation but questioned whether the Deputy Chair of the Land Court would have the expertise necessary for a Lands Tribunal case or whether the legally qualified member of the Lands Tribunal may have the expertise for an Land Court case. The alternative solution proposed would be a cadre of a small number of suitably qualified solicitors and/or advocates who remain in, or who have retired from, private practice which could be appointed as ad hoc members of the Land Court. They could then be called upon by the Chair to deal in recusal situations and if there was an issue with volume of work.

Although not either accepting or rejecting the consultation proposal, one respondent stated that, "we see this as pragmatic matter to be resolved by the relevant President, with the approach here being one option, perhaps the first option, subject to the circumstances and issues of the case in hand. It should perhaps not be the only option". However, the respondent did not offer any other suggestions.

James McPherson agreed with consultation whilst questioning whether it was really a problem given the rarity of the need for recusals.

Those that disagreed with the proposal

Only two of those who opposed the proposal commented. One questioned the impartiality of the Deputy Chair and the Legal Member when acting in the other forum. The other, Colin Grant, simply stated:

"I have no strong inclination on this but would again follow the principle of keeping functions discrete."