Scottish Land Court

In 2012 Lord McGhie will lead a special visit to the site of the Battle of the Braes on Skye to commemorate the centenary of the court's founding. The party will include Lord Bracadale, who was born on the island. The group will pass the church in Camustianaviag where the first witnesses to the court gave evidence in 1912, and is expected to acknowledge that the court "stands on the shoulders" of the crofters of the Braes who resisted eviction in 1882.[3]

The main business of the Court is handled through local hearings through the Divisional Court, which will hear cases at local venues. The hearings are not required to be held in local sheriff courts; they may be heard in village halls and other similar venues.[9] Hearings at the Divisional Court can involve one of the Agricultural Members of the Court, supported by the Principal Clerk as legal adviser, or one of the legally qualified Chairman or Deputy Chairman. The decision is made by the Member, whether agricultural or legally qualified.[10] Cases are remitted to the Agricultural Members when the Court decides they are suited to make a decision.[5]

A hearing can take two alternative formats: a proof or a debate. A proof is the standard form of civil hearing in Scotland, where the parties get a chance to prove their case. At a proof, evidence is presented and witnesses can be called. In a debate, there is only a hearing of legal arguments, and no witnesses are called. Debates are used where the primary concern is a question of law.[11]

The Member responsible for the Divisional Court can inspect the property involved in the dispute, and will usually do so at the end of a hearing. The purpose of the inspection is for the Member (and the Principal Clerk, where the Divisional Court is presided over by an Agricultural Member) to fully understand the evidence and to make a decision with a proper understanding of the nature of the dispute.[5][12] No new evidence will be heard or taken during an inspection. An inspection may be unaccompanied (neither party present) or accompanied (with both parties present).[13]

Decisions of the Divisional Court may be appealed to the Full Court. The appeal is not an opportunity for a rehearing of the case, but is an opportunity to challenge a wrong decision made by the Divisional Court. This challenge will usually be on a question of law.[14]

In very limited circumstances, and where important information was not put to the Court at first hearing, it is possible to seek a rehearing. At a rehearing the Court will need to know the reasons for the information not being presented at the original hearing.[15]

Appeals against decision of the Divisional Court are heard by the Full Court: all the Members of the Court meet in a single hearing. The Full Court will normally be chaired by either the Chairman or the Deputy Chairman, and will include any Member not involved in the initial hearing at Divisional Court. Some disputes are heard at first hearing in the Full Court; such cases may be appealed to the Court of Session.[14]

The Scottish Land Commission has been established to review land usage, ownership, and management in Scotland, as well as reviewing the legislation as part of the agenda of land reform. The Tenant Farming Commissioner has a specific jurisdiction related to landlords and tenant farmers. The Tenant Farming Commissioner has powers described by the Land Reform (Scotland) Act 2016.[16]

The Press and Journal newspaper reported on 8 April 2017 that Bob McIntosh, the first Tenant Farming Commissioner, hoped that the Codes of Practice he would develop would help tenants and landowners to resolve disputes without recourse to the Scottish Land Court. He stated that he would be able to investigate instances where a landlord or tenant had not complied with the Codes of Practice, following the lodging of a formal complaint.[17]

The Chairman of the Scottish Land Court is also appointed President of the Lands Tribunal for Scotland, and has the same rank and tenure as a Senator of the College of Justice, but does not number as a member of the Court of Session. The office of Chairman was created with the founding of the Scottish Land Court in 1991 under the Small Landholders (Scotland) Act 1911.[19] The Chairman is legally qualified, and must satisfy the same eligibility criteria as a Senator: that is, they must have served at least five years as sheriff or sheriff principal, and have been either an advocate for five years, or a solicitor with five years rights of audience before the Court of Session or High Court of Justiciary, or been a Writer to the Signet for ten years (having passed the examination in civil law at least two years before application.)[20][21] The Chairman is supported by a Deputy Chairman, who holds the office of advocate.[18]

As of April 2017, the Chairman of the Scottish Land Court is Lord Minginish who was appointed by the Monarch on 1 October 2014, having previously served as Deputy Chairman. His nomination by First Minister Alex Salmond was made following a recommendation of the Judicial Appointments Board for Scotland. At the same time he was also appointed by the Scottish Ministers as President of the Lands Tribunal for Scotland.[22]

Previous chairmen of the Land Court have been:

• 1912–18: Lord Kennedy[1]
• 1918–34: Lord St Vigeans[23]
• 1934–38: Lord Macgregor Mitchell[24]
• 1938–41: Lord Murray[25]
• 1941–65: Lord Gibson[26]
• 1965–78: Lord Birsay[27]
• 1978–92: Lord Elliott[28]
• 1993–96: Lord Philip
• 1996–2014: Lord McGhie
• 2014–present: Lord Minginish[29]

The Agricultural Members (also called "practical Members") are lay (not legally qualified) members of the Court with significant experience of agriculture. They deal with many crofting cases, and sit in the Divisional Court, where they are supported by the Principal Clerk as legal assessor. However, the decisions of the Divisional Court rest with the Agricultural Member.[10]

They hear cases throughout Scotland, and are expected to work on average three days a week. By statute they must retire at the age of 70.[30][31]

Agricultural Members will need to travel to the place where the dispute has arisen in order to conduct an Inspection. Sometimes they have to spend considerable time away from home. For instance, in 1913 the Divisional Court sat in Shetland for 3 months.[32]

The Principal Clerk is a legally qualified solicitor who is responsible for the running of the Court and for advising the Agricultural Members when they sit as the Divisional Court. The Principal Clerk is also responsible for the administrative staff of the Court, who are based at the Court's headquarters in Edinburgh.[10][33]

As of April 2017, the Principal Clerk was Barbara Brown, who was a qualified solicitor and a member of the Law Society of Scotland.[33]