Official Report 797KB pdf
The next item on our agenda is an evidence session with the Scottish Land Court on the Crofting and Scottish Land Court Bill. I welcome to the meeting Alison Irving, who is the principal clerk for the Scottish Land Court and the Lands Tribunal for Scotland. Good morning. I note that you do not have to operate your microphone; a gentleman will do that for you. We do not anticipate that the session will take very long, but we have allocated it 30 minutes. Although the Scottish Land Court cannot comment on policy decisions, I hope that we can discuss some of the operational impacts that part 2 of the bill could potentially have.
My first question to you is about the main operational benefits, but also the risks, of merging the Scottish Land Court and the Lands Tribunal for Scotland. In his submission to the committee, Lord Duthie highlighted some operational implications of the bill as it is currently worded. Do you have any additional comments?
The administrative team, which I lead, has gradually been merged over the past four years, which we have found to be very beneficial. The biggest benefit is the fact that two very small teams have become one slightly bigger team, which gives us much more flexibility.
Although I am not legally qualified, I see that as being very much a benefit for the members as well. For example, it would mean that they could, without special provisions being made, change jurisdictions within our business. In the past, although it has been possible for a legally qualified member of the Lands Tribunal to take a case in the Land Court when none of the Land Court members could do it, we have had to go to the Scottish Government to get that person specially appointed, which requires a lot of extra time and energy for no particular benefit. There are a lot of benefits to our being more efficiently organised and better able to cover for people.
The convener also asked about risks, but I am not sure that I can see any risks. I suppose that the biggest one would be that the Lands Tribunal would not have its own separate identity, which some people might be attached to. However, in practical terms I cannot see any difference. As I said, administratively, we now manage the two bodies together, but we have separate systems, because they are two separate bodies. Administratively and organisationally, it would be helpful to be just one body.
At the moment, is there sometimes a sense of overlap in the expertise of the two bodies, or is there synergy between the teams such that bringing them together legally will bring benefits?
I think so, yes. I do not know whether any of you are responsible for the Land Reform (Scotland) Bill, but you will have seen that there are various provisions in it where the Lands Tribunal or the Land Court is particularly referred to and, at times, it can hand over to the other body if it needs to. There is therefore definitely some overlap.
It would also be about broadening the range of things that we do, which would mean that the public would have a better understanding. We find that they see the word “land” and simply assume that everything comes to us—which would still not be the case, but it would certainly reduce that issue.
In the mind of the public, there are grey areas in relation to what roles the two bodies have and who should deal with what. That would be taken away because there will be, if not a one-stop shop, a far clearer public understanding of the responsibilities and roles.
I think so, yes. There will still be things that go to the ordinary courts—the sheriff court or the Court of Session—but, when things go to a specialist court, there will be just one. People will not have to decide whether it is for the Lands Tribunal or the Land Court.
I realise that there is a limit to what you can comment on, but I will pick up on some of those themes. On the administrative impact, Lord Duthie, the chairman of the Land Court, has commented on the system for appeals under the new arrangements. For example, he has mentioned that the bill
“would have the result that other than in cases where the presiding legal member is the chair, decisions in land registration, title conditions, electronic communications code and disputed compensation cases would all be subject to internal appeal. This is a significant innovation on the status quo.”
How would that work, how would that impact on the workload of the court, and how would that be managed?
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The Lands Tribunal has more work coming in than the Land Court does, and the bulk of its cases are the types of cases that are listed there. I am not suggesting that every case goes to appeal, but it would definitely increase our workload if the Lands Tribunal had to deal with internal appeals in some of those cases. We would also have to schedule time for three members, not just one, because internal appeals are heard by the chair plus two other members. Those two people must also not have been involved in the case, which would seriously restrict how many people would qualify. It might mean looking for people from outside the normal membership of the current team. The only experience that we have at the moment is in the Land Court, which has four or sometimes five members, and, if most of them are disqualified because they have already had some involvement in the case, we have to approach retired members, which is quite difficult as well. There would be a practical impact because of the scheduling, the time that would be required and the fact that those people would not be available for other cases. All of those would be knock-on effects.
Lord Duthie also highlighted that there have been no applications from Gaelic speakers in the past 10 years and that the requirement to have a Gaelic-speaking member could potentially restrict the pool of candidates for an appointment. Is that policy out of date now? Does it need to be updated to ensure that there is no restriction on the pool of potential candidates?
I will be careful in what I say here, because my role is only operational. Clearly, as soon as you add more qualifications, you make it more difficult for people to apply. So, yes, I am sure that it will have an impact.
From a purely practical point of view—I believe that Lord Duthie mentioned this—it would be very difficult to have only a Gaelic speaker; you would also need to employ an interpreter, as you would for any other person with a different language need. In the interests of open justice, we would want to be seen to ensure that everybody could understand what was going on, and my personal opinion is that having only one Gaelic speaker would open the door to there being a conversation between that Gaelic-speaking member and the applicant, with nobody else in the room able to understand what was happening.
I guess that the requirement for a member to have Gaelic is not necessarily the most important thing. The most important thing is that there is access to Gaelic within the operational concerns, and an amendment to that effect could be lodged.
Looking at the process purely operationally—I do not want to stray into policy—the important thing is to ensure that everybody is clear about what is happening. It would be like what we do for Polish speakers, for example. In the court service, we have provisions to get translations.
I appreciate your description, but I would add, just for the record, that it is possible for people to learn languages, including Gaelic.
Yes.
This might be straying from operational matters, but I wonder whether the requirement for a Gaelic speaker is really more about a cultural piece and people’s relationship to the Gàidhealtachd and dùthchas. Is it about not only the language but the culture? That might be straying beyond what you can comment on.
I think that it probably is. I understand what you are saying, and it is certainly helpful, but the court has to apply the legislation. It would be a case of everybody understanding what the court was doing, and that would be about the language as much as anything else.
Good morning. Some concerns were raised in evidence that the merger is a cost-cutting exercise. You have indicated that the two courts have gradually merged over the past four years. Are you able to provide any reassurance that the efficiency of the expanded court will not be compromised by the merger?
As the lead for the team, I certainly would not want to see it compromised. We started merging the administrative support four years ago, because the Lands Tribunal was supported by a very small team. There were only three of them, and two of those three retired that year. The decision was purely functional, and we have brought in all the tools and resources that they need. It would have been much easier to have a merged support system, but we do not yet have that, because we are not merged at the top. However, it is not about cutting costs or staff. In fact, we have more bodies, although the organisation is slightly different.
Good morning, and thank you for your answers so far. In your opinion, would Lands Tribunal members sitting in the new Land Court retain the same decision-making powers and independence as before?
Again, I can answer only from the operational side. I cannot see any reason why not. The Land Court and the Lands Tribunal have been co-located for many years, and, as I believe you are aware, they have had the same chairman or president since the 1970s, I think. The leadership has always been aware of what is happening in both bodies, and I see no reason why that would change. All the members are independent minded and would continue to function independently.
The Land Court and the Lands Tribunal have different expertise in a lot of areas. The concern is not about the here and now, but about the future. Is there likely to be a loss of that expertise? Would people taking on a broader range of cases mean that they would have wider knowledge rather than in-depth knowledge about certain issues?
The expanded Land Court would still require to have agricultural members and surveyor members, so I presume that that level of expertise would be retained. Again, that is a bit outside my sphere.
Speaking administratively, some things across the two jurisdictions are very similar, while some areas are very different and separate. People can and still do specialise in those separate areas, but we can cover if somebody goes off sick, for example. If one specialist goes off long-term sick, it is difficult to replace their expertise, but at least if other people are prepared to cover they will build up their expertise more quickly if there has to be a sudden change.
I have no concerns about that. It gives us more flexibility and more opportunities to build up knowledge that will help us across the board.
How would you ensure that, following the merger, parties would have rights of appeal that were equivalent to those that they have now?
That would be a legislative provision.
Simple questions, simple answers—that is the way we like it. The next question, from Ariane Burgess, might not be quite so straightforward.
My question is about the potential expansion of the Land Court’s functions. The Scottish Government has stated that
“consideration will be given to the expanded Land Court taking on new functions in relation to Aarhus cases in time to come”.
I am interested in your thoughts on the idea of that expansion and how it might impact the Land Court.
Whether that happens is a policy question, and, as I am on the operational side, I would do whatever I was asked to do. Having said that, the Land Court already has a number of niche jurisdictions, so it is used to dealing with a range of different pieces of legislation, for example, not necessarily with a large volume of the same type of case. We are not set up to deal with just one type of case time and time again; we are set up to deal with a number of different areas.
So, you could take on Aarhus-related cases.
I would have thought so, but that is purely from the operational side. Unless something was going to come with a large amount of extra work—in which case we would have to look at the staffing to go with it—it should not make a difference to how we operate.
An environmental court could be a big and very busy body. Since Brexit, there has been talk about whether there should be an environmental court and about the Government’s policy position on that. We are not going to go into the policy position, but it is almost that, within the legislation, the Government might or might not do it at some time in the future. At this point in time, when we are considering legislation as it goes through, would the development of an environmental court within the two bodies that are merging under the bill not impact considerably on your operational capacity? Would there not need to be a long lead-in time to develop the systems and the capacity not just for what would be an add-on but for the significantly heavier workload that an environmental court might bring?
Again, I can only give you my opinion, which is based on the operational side. We already deal with appeals against some Scottish Environmental Protection Agency decisions. However, I am sure that you are right. A full-scale environmental court is a very different thing, and a lot of policy decisions would have to be made about it, but I cannot comment on them. If it was going to mean a significant increase in workload, questions would definitely have to be asked about resourcing, the technology that we use and all the rest of it. It would be a large-scale exercise, and I imagine that it would take some time to put in place.
Given that we are touching on the subject, and given how big a change it might be, has the Scottish Government consulted or asked the Scottish Land Court and the Lands Tribunal about taking on environmental court status?
I am honestly not aware of any official approaches, but it would be outside my remit, so it could have been done and I would not have known about it.
We have no more questions, so I thank you for your evidence this morning. It has been very helpful.
I suspend the meeting for five minutes, to allow a change of witnesses.
09:27 Meeting suspended.