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

Question 1

Please indicate your views on the proposal to amalgamate the Scottish Land Court and the Lands Tribunal for Scotland.

In favour	Not in favour	Other	Not answered
17	17	1	23
29.3%	29.3%	1.7%	39.7%

34 respondents answered this question. 17 were in favour of and 17 were opposed to a merger of the Land Court and the Lands Tribunal. Both the Law Society of Scotland and the Faculty of Advocates were opposed to a meger. The other response stated:

"I would be in favour of abolishing the Scottish Land Court and the Lands Tribunal for Scotland and transferring their functions to the First-tier Tribunal for Scotland."

In favour

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. For example, one respondent stated:

"I am persuaded by the reasons in favour set out in the consultation paper. I think these outweigh any of the disadvantages identified. I think the main advantage of unification is the ability to utilise personnel across jurisdictions."

The Scottish Tenant Farmers Association wrote:

"Reform would enable the more efficient running of the two bodies including the sharing of resources and personnel. It would be useful if the efficiency savings could be quantified."

Stirling Council and the Scottish Crofting Association responded in the same vein.

The Centre for Scots Law at the University of Aberdeen, Alisdair MacPherson, and Andrew Francis considered that not only would there be an advantage in terms of efficiency, but a merger would clarify and offer more certainty to those who presently use the bodies. The former's response stated:

"The change would lead to a more efficient use of resources (for various parties, including the state). It would also provide more clarity and certainty regarding jurisdictional matters for the public and even for legal practitioners. A 'one stop shop' for a large number of land law matters is preferable to the current arrangement…"

The Senators of the College of Justice added another dimension, that of "structural coherence":

"We are in favour of the proposal. In our view the pros decisively outweigh the cons. Amalgamation would yield structural coherence. At present many persons are unaware of the scope of each one's jurisdiction. By bringing them together, the new body could develop a broader range of skills.

Three of the respondents considered that it would not only rationalise the current situation, but that the merged body would form the basis for an environmental court. The Scottish Land Commission, the Environmental Rights Centre for Scotland (ERCS), and Professor J Campbell Gemmell all took this view.

However, James McPherson, whilst supporting an amalgamation of the two bodies, added a note of caution.

"However, whatever gloss is placed on an amalgamated body which becomes the Scottish Land Court it will continue in what is effectively 2 divisions with separate skill sets relative to 'surveyors' and 'agriculturalists'."

In support of this, he quoted the Scottish Civil Courts Review conducted under the chairmanship of Lord Gill in 2009 which states that "the Land Court has become a model of a specialist court".^[2] Mr McPherson goes on to say:

"It must continue as before, meeting in Edinburgh but also throughout the crofting counties. While parties before the Land Court can agree to a case being settled on written submissions, it must not in the interest of 'efficiency' adopt the procedures of that other specialist court, the Personal Injury Court where it sits in Edinburgh and motions are submitted by email and electronically."

Not in favour

Whereas most respondents had high respect for the Land Court and Lands Tribunal, Colin Gibson took a different stance:

"Presently both Land Court and Lands Tribunal appear to very politicised any proposal would merely exacerbate already incompetent administrative offices."

He suggests that a 'real-world review' is required of the service that both the Land Court and the Lands Tribunal delivers to the community at large.

The Faculty had a number of objections to a proposed merger. Firstly, it considered that the resolution of the disputes in the two bodies requires different approaches. Secondly, it is concerned about a unitary set of court rules and whether they would be appropriate across the board. Next, it questioned whether the informality at present enjoyed in the Lands Tribunal would be lost if it was to be subsumed into the Land Court. Finally, it considered that any amalgamation could have an adverse effect on the delays which currently experienced in the Land Court and Lands Tribunal. It went on to say:

"We consider that many of the proposed advantages could be achieved by the sharing of administrative resources between the Land Court and the Lands Tribunal, which share the same premises, without any reform of the existing structures. … Any additional available resources would be better directed to alleviating such pressures and to improving access to the SLC and LTS by means of greater use of technology."

The Law Society was concerned that an amalgamation of the two bodies would result in the expertise each currently possesses would be compromised:

"It is vital that the Court's expertise in crofting matters is retained and is not diluted by an amalgamation with the Lands Tribunal. This is equally true of the specialist work carried out by the Lands Tribunal and we consider it important that the particular expertise of the two bodies is not lost by an amalgamation."

Inksters Solicitors echoed this:

"The SLC and the LTS are different institutions and have a different focus from each other. This, we believe, is demonstrated by the different ways in which they are constituted. The SLC requires agricultural experts to be appointed while the LTS requires surveyors."

It also agreed with the concerns expressed by the Faculty about the court rules and considered that the functions of the Land Court and the Lands Tribunal were so different that even in an amalgamated body, two sets of rules would be required.

The Central Association of Agricultural Valuers and the Scottish Agricultural Arbiters and Valuers Association (CAAV and SAAVA) completed a joint response in which they too, like the Faculty "would rather see effort spent on improving the service offered by each: remedying present issues of pressure and delay found with both bodies".

Robert Robertson took the view that any amalgamation of the Land Court and Lands Tribunal needs to take place in the context of a wider look at the system for dealing with property law:

"This would only make sense if it were part of a greater reorganisation of the courts and tribunals concerned with Property in Scotland."

The Agricultural Law Association noted that "[b]oth the Land Court and the Lands Tribunal were created under statute with particular purposes and functions at the time of their creation". It takes the view that their roles are quite distinct even though there has been expansion of their functions over time:

"We consider that many of the potential benefits set out in the Consultation in support of the proposal are more theoretical than real and do not stand up to detailed scrutiny. In particular, we do not consider that there is any overlap in the valuation areas listed in the consultation."

Finally, Scottish Lands & Estates, whilst indicating that it was not in favour of an amalgamation, stated that it was "not entirely opposed to the amalgamation proposal, but we do have some serious concerns should it go ahead". Those concerns were about whether the amalgamated body would be adequately resourced, whether access to justice be at least as comparable as now, and whether expertise would be compromised. It would also be opposed to any increased costs for the parties using the amalgamated body.

Other views

Lord McGhie is a former Chair of the Land Court and President of the Lands Tribunal. It is perhaps worth noting his response:

"I now have no view one way or another. When I was Chairman I thought that the similarities between Court and Tribunal were more apparent than real. But times change and as I am out of current practice, I express no view as to where the balance lies on this issue."

He also warned that any amalgamation should not compromise the specialist skills of each forum. He considered that it would be difficult to produce a single set of rules for an amalgamated body though "this might be ameliorated by having a fresh look at the idea of having just a few broad rules accompanied by more detailed Practice Notes".

The Scottish Environment Protection Agency (SEPA) also expressed no view on whether there should be an amalgamation, but cautioned that if such an amalgamation were to take place "it is vital that the specific rules for appeals to the Land Court against the new enforcement measures are preserved" and also that "it is vital that the specific rules in relation to the cost of applying to appeal against enforcement measures decisions taken by SEPA are preserved".

Finally, NFU Scotland indicated that it considered that "compelling" arguments can be made both for and against amalgamation. "Unification is preferable to some, as it represents the potential for shared resource and thus a cost saving. However, NFUS members have concerns about the potential to lose more specialist knowledge that may be applied to issues such as crofting."