Publication - Consultation analysis

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

Published: 8 Jun 2021
Directorate:
Justice Directorate
Part of:
Farming and rural, Law and order
ISBN:
9781800048942

Consultation sought views on whether the Scottish Land Court and the Lands Tribunal for Scotland should be merged. It also asked further questions about related administrative issues relating to the bodies.

45 page PDF

456.4 kB

45 page PDF

456.4 kB

Contents
Scottish Land Court and the Lands Tribunal for Scotland: consultation analysis
Appendix 2 – Summary table

45 page PDF

456.4 kB

Appendix 2 – Summary table

Question Assessment Main comments
Q1: Please indicate your views on the proposal to amalgamate the Scottish Land Court and the Lands Tribunal for Scotland. There was no majority of those who responded to the question either for or against Points in favour
  • More efficient administration of the services
  • Sharing of resources and staff would be advantageous
  • Merger would bring a wider range of skills as members from the Court and Tribunal would be available in a unified body
  • Role of a single body would offer more clarity and certainty regarding jurisdictional matters
  • A 'one stop shop' for a large number of land law matters is preferable to the current arrangements
  • Merged body could form the basis for an environmental court.
Points against
  • Land Court and the Lands Tribunal are quite distinct
  • Resolution of the disputes in the two bodies requires different approaches
  • A unitary set of court rules would not be appropriate
  • Expertise each possesses may be compromised
  • Lands Tribunal would lose its valued informality
Q2: 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? 83.3% of those who responded to the question favoured a court Points in favour
  • A court has higher status and is more authoritative
  • A court may be a more suitable for taking on extra functions
Points against
  • A tribunal is less formal than a court and thus more user-friendly
  • The Land Court consists principally of lay members with no legal qualification and that this is unsatisfactory
Q3: 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 take on more functions than those separately undertaken by the two bodies at present? 58.8% of those who responded to the question favoured a merged body taking on more functions Points in favour
  • The extra functions suggested in the consultation were appropriate
  • An expanded Land Court could take on functions relating to environmental law
  • Merged body could be responsible for applications by an executor under 16(3) of the Succession (Scotland) Act 1964
Points against
  • A tribunal is less formal than a court and thus more user-friendly
  • There should be no transfer of wind-farm applications or applications for development on green belt land to the Land Court
  • It is more appropriate that the extra functions suggested in the consultation should remain in the sheriff court, the Sheriff Appeal Court, and the Court of Session
Q4: 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. 86.1% and 88.6% respectively of those who responded to these questions were in favour of the proposals Points in favour
  • The proposals are sensible, flexible or pragmatic
  • The qualifications of the Land Court Deputy Chair also qualify the holder to hear a case in the Lands Tribunal
Points against
  • Would the Deputy Chair of the Land Court have the expertise necessary for a Lands Tribunal case or would the legally qualified member of the Lands Tribunal have the expertise for an Land Court case?
Other suggestions
  • Appoint a cadre of a small number of suitably qualified solicitors and/or advocates which could be appointed as ad hoc members of the Land Court to deal in recusal situations and if there was an issue with volume of work
  • Use retired members
Q5: Do you consider it necessary to continue to have a Gaelic speaker as one of the members of the Land Court? 52.2% of those who responded to it thought it was necessary for the Land Court to have a Gaelic-speaking member Points in favour
  • Gaelic's importance in the world of crofting
  • The close relationship between crofting, the language and the land
  • Crofters often think in Gaelic including in court
  • Essential that a person hearing a case not only understands the language, but also understood the law concerning crofting
  • A change would be contrary to the Scottish Government Gaelic Language Plan 2016-2021
  • Using translators is unsatisfactory
Points against
  • Desirable but not really practical
  • Recruitment of Gaelic-speaking legal member difficult as few suitable candidates
  • Court hearings are in public and the parties, staff and the public must all be able to follow the proceedings
  • Almost all Gaelic speakers can speak English
Alternative Use translating service offered by Scottish Courts and Tribunals Service
Q6: Do you consider that the Lands Tribunal power 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 amendment Points in favour
  • The principle of expenses following success raises access to justice issues
  • A balance needs to be struck between maintaining access to justice and discouraging claims which lack merit
Points against
  • It is a common and well understood practice in the court
  • Emendation risks of ill-founded or frivolous objections
Other possibilities
  • The Lands Tribunal should have an option not to award expenses except in ill-founded cases
  • If the merged body is a tribunal, use Scottish tribunal rules
  • Each party to bear its own costs
Q7: Do you think that 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 possibility of expenses was an access to justice issue Points in favour
  • Those appealing against the Scottish Government could be completely out-matched by the representation the government can afford at public expense
Points against
  • It is a common and well understood practice in the court
  • Emendation risks of ill-founded or frivolous objections
Other possibilities
  • Introduction of a cap on expenses
  • Introduce a protective expenses arrangement
  • Introduce qualified one-way cost shifting
  • Better sifting of cases to identify appeals with little or no reasonable prospect of success
  • Challenges to routine administrative decisions by government bodies should be free of charge
Q8: Other comments
  • More use of alternative dispute resolution in matters of dispute that would normally be brought to the Land Court or Lands Tribunal.
  • The need to tackle environmental issues and comply with the Aarhus Convention
  • All archived material of the Land Court must remain accessible
  • Suggestions as to the qualifications that should be required of the Chair of any expanded Court
  • The present procedure for non-domestic rating appeals should remain rather than being replaced by the Land Court's internal appeal system
  • Concerns over delays in the Land Court and Lands Tribunal

Contact

Email: michael.green@gov.scot