JC12 Justice Committee Judiciary and Courts Scotl

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                                  Justice Committee

                         Judiciary and Courts (Scotland) Bill

                 Written Submission from the Scottish Land Court

I write to draw the Committee’s attention the substantive omission of the Scottish
Land Court from the Bill as presented. I would submit to the Committee that there is
much to commend the opportunity being taken now to amend the Bill to include the
Scottish Land Court within the definition of “Scottish courts” in terms of clause 2(5).

This is a personal submission, but in my capacity as a full-time Member of the
Scottish Land Court of eleven years’ standing. Whilst I have the broad support of my
colleagues, the views expressed are my own.

The main thrust of my submission to the Committee is that I am strongly of the view
that it is in the overall public interest that the Scottish Land Court and all its Members
be encompassed within the Bill now. It is presently excluded. The Court is, I believe,
well regarded by those who use its services. In view of the recent significant
extensions to its jurisdiction, it would appear that the Scottish Ministers consider it to
be an appropriate forum for resolution of a wide and increasing range of rural land
based disputes.

Although certain provisions exist in relation to the Chairman of the Scottish Land
Court, it does not appear that any provisions are inclusive of the Court as a body or
of any of its other Members. In terms of paragraph 18 of the Delegated Powers
Memorandum, it seems that some thought may have been given to the matter – with
the Scottish Land Court being given as an example of an additional existing court
which might “over time” come within the Lord President’s remit.

My view is that it is entirely apt that the Land Court be included now – precisely
because all the general principles on which the current Bill is founded apply to the
Court and its Members. Exclusion would appear to me to set the Land Court apart
from other Scottish courts and it is not at all obvious why that should be. I consider
that it is in the overall public interest that the Bill be amended to provide for inclusion
and would ask the Committee to so recommend when publishing its report.

The jurisdiction of the Scottish Land Court

The Land Court is a Scottish court with a wide ranging jurisdiction in matters relating
to agriculture, the rural environment and agricultural / crofting tenancies. The
legislation is complex with several aspects recently changed / added to and further
changes anticipated in the short term. All Members, not just the Chairman, must
possess or be capable of being trained to acquire, the judicial skills required of any
holder of judicial office.

Whilst the Chairman must, in addition to judicial skills, have proven expertise and
experience in matters of law, the lay Members, in addition to judicial skills, are
required to have and to retain expertise in all matters relating to Scottish agriculture
and the rural environment.




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Areas of Concern

Judicial Independence
It goes without saying that the Scottish Land Court, as a judicial body and as
individual Members making up the body corporate in terms of Schedule 1(1) of the
Scottish Land Court Act 1993 (the 1993 Act) must at all times uphold the principle of
judicial independence. I hope that we do so at present. It is important to note that,
unlike under certain other jurisdictions, the lay Members take responsibility for
decisions made by the Court. When sitting alone, they are entirely responsible for
the decision and when sitting with one or more other Members (including the
Chairman) they are jointly responsible for the decision.

It would seem that the Bill fails to secure judicial independence for the Scottish Land
Court. In so failing to include the Scottish Land Court within the definition of Scottish
courts at section 2(5), there must be a concern that any arrangements for the
management and supervision of the Court could militate against its independence.

As presently drafted, it appears that the Lord President will not be responsible for the
business of the Scottish Land Court or for its Members – other than the Chairman. It
is not apparent to me why this should be. There appears to be no logical basis,
given the function of the lay Members, for them being considered distinctly from the
Chairman in respect of the need for judicial independence in particular.

Appointment
The appointment of Members of the Scottish Land Court is a relatively infrequent
occurrence and arrangements in the recent past appear to have been on an “ad hoc”
basis. At present, the appointment of Members of the Land Court is provided for
under the 1993 Act s1(2) whereby “The Land Court shall consist of such persons...as
Her Majesty, on the recommendation of the First Minister, may appoint;...”.      In
Schedule 1(9) to the Act, it is provided that “...any vacancy occurring in the
membership of the Land Court may be filled by appointment of a person by Her
Majesty, on the recommendation of the Scottish Ministers”.

Although carried out under open competition, the selection panel is created as a
“one-off” according to the perceived requirements at the time. There is much to
commend the proposition that selection in future should be by the proposed Judicial
Appointments Board (JAB). That would ensure that matters included at s12, s13,
s14 and s16 of the Bill are properly considered when new Members are being
appointed in future.

It might be suggested that because of the proposed membership of the JAB it would
be an inappropriate body to assess the lay skills of a candidate for Land Court
Membership. That, however, can presumably be catered for by virtue of paragraph
14(2)(b) of Schedule 1 which provides for the appointment of a person “to provide the
Board with advice”. Given that provision, then it is my submission that the JAB is the
appropriate selection body for Members of the Land Court. This should be provided
in the terms of the Bill and not left for future provision under clause 10(1)(g).

Conduct, suspension, removal
In regard to conduct and removal, the present arrangements for Members of the
Land Court (other than the Chairman) is contained in Schedule 1(11) of the 1993 Act



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whereby the “Scottish Ministers may remove any member...for inability or
misbehaviour”. It requires an order of removal, with reasons, and must lay in both
Houses of Parliament for not less than thirty days while Parliament is sitting. The
order will not operate if either House passes a resolution objecting to it.

There are no provisions in regard to suspension. It may be that the 1993 Act
provisions could remain, however, it would seem appropriate – when bringing other
matters within the remit of the Lord President – to include Members of the Land Court
(in addition to the Chairman) in s26, s27, s32 and s33 of the Bill as drafted. That
could be achieved by the inclusion of Members of the Scottish Land Court as “judicial
office holders” under s33(2) and s39(2) and I submit that this should be done.

The Scottish Court Service
Given the omission of the Scottish Land Court from the Bill it is suggested that its
administrative arrangements may become more problematic and prospectively
prejudicial to its independence. It is submitted therefore that there is much to
commend its administrative support being provided by the Scottish Court Service in
terms of clause 57.


David Houston




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