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

Chapter 1: Introduction

1. The Scottish Land Court (“the Land Court”) was created by the Small Landholders (Scotland) Act 1911. It began operations on 1 April 1912. It is a court of law with a jurisdiction set firmly within the context of Scottish farming. It has authority to resolve a range of disputes, including disputes between landlords and tenants, in farming and crofting. Although the Court is based in Edinburgh, it holds hearings throughout Scotland.

2. Although powers to create lands tribunals in the various parts of the United Kingdom have existed since the enactment of the Lands Tribunal Act 1949, it was not until 1 March 1971 that the Lands Tribunal for Scotland (“the Lands Tribunal”) was set up under the Lands Tribunal Act (Appointed Day) (Scotland) Order 1971.

3. The Scottish Government considers that there may be a case for merging the two bodies which share the same head and occupy the same premises in Edinburgh. The purpose of this consultation is to invite stakeholder views on the possibility of amalgamating the Scottish Land Court and the Lands Tribunal for Scotland.

4. This consultation also gives the Scottish Government the opportunity to seek stakeholder views on four administrative matters.

• There are times when all the legal members of the Land Court or the Lands Tribunal have to recuse themselves from a case. Should statutory arrangements be put in place to provide for an appropriately qualified substitute?
• There is a statutory requirement that there should be a Gaelic speaker at the Land Court. Is this necessary?
• The Lands Tribunal has a statutory power under the Title Conditions (Scotland) Act 2003 to deal with various types of dispute involving land or property. Although the Lands Tribunal works in much the same way as an ordinary civil court, the aim is to be as accessible and user friendly as possible. The principle of “expenses follow success” sometimes acts as a deterrent to litigation. Should the 2003 Act be amended in the interests of access to justice?
• The Land Court has power to award expenses in cases across the range of its jurisdictions and, as with the Lands Tribunal, the principle of expenses following success is applied. There is a question as to whether this operates as a barrier to justice in appeals by farmers and crofters under the Rural Payments (Appeals) (Scotland) Regulations 2015. The Scottish Government, as respondent, is in a position to deploy considerable legal firepower, in the form of counsel, sometimes senior counsel, in addition to its own in-house solicitors, all funded at public expense. Does the risk of being found liable in very considerable expenses deter crofters and farmers from challenging Scottish Government decisions which might otherwise be amenable to legitimate challenge and, if so, what should be done about it?