Introduction and executive summary
The Scottish Government consulted on various issues relating to the Scottish Land Court (the Land Court) and the Lands Tribunal for Scotland (the Lands Tribunal) from August to October 2020. The main questions were whether the two bodies should be amalgamated and, if so, whether the resultant body should be a court or a tribunal. The other questions related to administrative matters relating to the Court and Tribunal.
The consultation produced an even split on the question as to whether the land Court and the Lands Tribunal should be amalgamated. The main reasons given for supporting the merger were that it would mean a more efficient administration of the services that the Land Court and the Lands Tribunal currently offer. In particular, those that responded in favour considered that the sharing of resources and staff would be advantageous. Also a merger would clarify and offer more certainty to those who presently use the bodies. Finally, some thought a merged body could form the basis for an environmental court.
The opposing views argued that the Land Court and the Lands Tribunal are quite distinct and that the resolution of the disputes in the two bodies requires different approaches. A unitary set of court rules would not be appropriate. In addition, a merger may result in the compromising of the expertise each possesses. Finally, the Lands Tribunal would lose its valued informality.
As regards the question of whether a merged body should be a court or tribunal, 83.3% of those that answered the question thought it should be a court. The main reasons given were that a court has higher status and is more authoritative. Some considered that a court may be a more suitable for taking on extra functions.
The arguments for a tribunal included the view that a tribunal is less formal than a court and that, as a result, it was more user-friendly. There were also concerns that the Land Court consists principally of lay members with no legal qualification and that this is unsatisfactory.
The third question asked whether, in the case of a merger, the resultant body should take on more functions. A slight majority of those answering considered that it should. Many thought that the extra functions suggested in the consultation were appropriate. The main suggestion beyond that was that an expanded Land Court could take on functions relating to environmental law. There was also a proposal that applications by an executor under 16(3) of the Succession (Scotland) Act 1964 should come into the scope of the Land Court.
There was opposition to the transfer of wind-farm applications or applications for development on green belt land to the Land Court. Also, there was a view that the extra functions suggested in the consultation should remain in the sheriff court, the Sheriff Appeal Court, and the Court of Session.
The fourth question had two elements; arrangements when members of the Land Court had recuse themselves and arrangements when members of the Lands Tribunal had to take the same action. 86.1% and 88.6% respectively of those answering were in favour of an arrangement where a member of the other body would be drafted in to cover the recusal. The main argument was that the proposal was sensible, flexible or pragmatic.
The fifth question concerned the necessity for a Gaelic-speaking member of the Land Court. This question attracted the most attention and 52.2% of those who responded to it thought it was necessary. The main reasons given concerned Gaelic's importance in the world of crofting where there is a close relationship between the language and the land. Many crofters think in Gaelic and some consider it essential that a person hearing a case not only understand the language, but also understood the law concerning crofting. It was also argued that a change in statute would be contrary to the Scottish Government Gaelic Language Plan 2016-2021.
Most of the respondents who thought it unnecessary to have a Gaelic-speaking member considered it to be a desirable requirement but not really practical. They saw that it made recruitment of legal members difficult as it substantially reduced the number of suitable candidates. It was also argued that court hearings are in public and the parties, staff and the public must all be able to follow the proceedings. If Gaelic were to be required, interpreters were available.
Question 6 sought views on whether the power that the Lands Tribunal has to award expenses under section 103 of the Title Condition (Scotland) Act 2003 should be amended so that expenses are not as tied to the success of an application as they are at present. 75% of those who answered the question were in favour of some amendment. A number of the respondents considered that the principle of expenses following success raised access to justice issues. Others considered that the issue was perhaps a little more complicated and that a balance needs to be struck between maintaining access to justice and discouraging claims which lack merit.
Those who opposed any emendation of the principle of "expenses following success" pointed out that it was a common and well understood practice in the court and changing it led to this risk of ill-founded or frivolous objections. A few respondents suggested an alternative would be an option for the Lands Tribunal not to award expenses except in ill-founded cases.
The seventh question asked whether the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice. 83.9% of those who answered considered that the threat of expenses was an access to justice issue. Some noted that those appealing against the Scottish Government could be completely out-matched by the representation the government can afford at public expense. However, others considered that if the power to award expenses is abolished, it risks frivolous appeals. Perhaps it would be better to introduce a cap on expenses, or introducing qualified one-way cost shifting, or protective expenses orders, or better sifting of cases to identify appeals with little or no reasonable prospect of success. Finally, there was a suggestion that challenges to routine administrative decisions by government bodies should be free of charge.
The last question asked for any other comments. Suggestions made included more use of alternative dispute resolution in matters of dispute that would normally be brought to the Land Court or Lands Tribunal.