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

Chapter 6: Issues requiring consideration

The necessity for legislation

60. Amalgamation of the Land Court and the Lands Tribunal would require primary legislation for which appropriate time and resources will require to be allocated. The required Bill would not be introduced into the Scottish Parliament this session and whether amalgamation should be progressed and, if so, with what priority, would be a matter for the next Scottish Government. This means that it is unlikely that a Bill could be introduced before 2022 at the earliest. If it were decided to add new functions to the merged Court as outlined in paragraphs 46 to 51, the drafting of the Bill would take longer and therefore need more resources than if a Bill just provided for amalgamation. Any Bill introduced would then be subject to a timetable set out by Parliament.

Rules

61. The issue of rules would also have to be addressed. In 2014, the Land Court benefited from a new set of rules^[61]. These were the subject of long consideration by Lord McGhie, the then Chair of the Land Court. The rules are considered to be fit for purpose in the modern age. The Lands Tribunal for Scotland rules^[62] are similarly modern. They are relatively brief and largely tailored to the Lands Tribunal's specific jurisdictions. It is probable that it should not be difficult to incorporate them into an expanded set of Rules for an enlarged Land Court. However, if the merged Land Court were to be expanded to take on functions presently undertaken by other courts, this could extend the time and work needed to draft rules.

62. A decision would have to be taken as to who should draft the new rules – would it be the expanded Land Court itself or the Scottish Civil Justice Council (which is responsible for drafting most court rules at present)? Whichever body is charged with drafting the rules, a start will not be able to be made until the legislation amalgamating the Court and the Tribunal is enacted.

63. The fact that the Land Court has an internal appeal structure which the Lands Tribunal does not was thought to pose an insuperable obstacle to the production of a joint set of rules on a previous occasion^[63]. However, that was in the context of a proposal to incorporate the Court into the Tribunal. In that situation either the Court would have to lose its internal appeal procedure or one would have to be created for the Tribunal. If the Tribunal were to be incorporated into the Court it would become subject to the Court’s internal appeal mechanism, unless, of course, the need for such a mechanism was revisited in the context of a comprehensive review of the Court’s rules to take account of the unification.

64. As far as members of staff are concerned, both staffs have transferred into the SCTS, so their terms and conditions of employment have been standardised as part of that process. It is expected that the staff of both the Land Court and the Lands Tribunal would be retained to work in the new amalgamated body.

65. Both the Court and Tribunal charge their users fees. If amalgamation goes ahead, fees would have to be reviewed across the range of jurisdictions to exclude discrepancies and inconsistencies.

Financial matters

66. It is difficult to ascertain the extent to which amalgamation will result in administrative savings but it is reasonable to assume that, going forward, there may be some efficiency savings. However, there would be a cost to the taxpayer in the drafting of legislation and in the passage of the Bill through the Parliamentary process. Salaries of the specialist members of the two bodies, which presently diverge significantly, would have to be standardised.

Workloads

67. As there is with their staffing, there is broad parity between the workloads of the Court and the Tribunal, but these workloads vary over time. At present, it is not possible to deploy members (other than the Chair/President) and staff from one jurisdiction to the other. Unification would solve that problem in that all personnel would be available for deployment across the unified range of jurisdictions, avoiding some being overloaded whilst others might be having a quieter time.

68. In relation to this, it is important to bear in mind recent and possible future changes to the workloads of the bodies. Applications under the Electronic Communications Code are already impacting on the Tribunal’s workload while it remains too early to say what the effect of the right to buy abandoned, neglected and detrimental land and the right to buy land to further sustainable development will have. The point is that a unified workforce will be better placed to deal with an increased workload, irrespective of its origin.