Beginnings and history

Originally published as part of the Court centenary commemoration.

The start

The Land Court was the direct successor of an earlier body. This was a Commission established under the Crofters Holdings (Scotland) Act 1886 to implement various features of that Act. Its main task was to fix rents. It also had power to fix boundaries and to determine questions such as rights of access to crofts. It was presided over by a distinguished lawyer, Sir David Brand, and effectively functioned as a court or tribunal. The story of that Commission and of the previous investigative Commission, the Napier Commission, which led to the 1886 Act, is very much part of the background of the Court.

The history of the Clearances is fairly well-known. It led to the displacement of thousands of crofters and to crowded inadequate holdings round the coasts as landlords tried to force crofters to turn to fishing. At Braes the situation was bad but became intolerable when the landlord attempted to take away the crofters grazing rights on the local hillside — Ben Lee. The protests over this spread to other parts of Skye. There was widespread public concern. Gladstone’s Government took notice and a Commission under the chairmanship of Lord Napier was set up to make enquiries. They made various recommendations. An important one was that more land had to be provided for crofters. The 1886 Act made little provision for this but it did give the crofters important rights: in simple terms, the right to a fair rent (based on what the landlord provided not their own improvements); the right to have arrears of rents modified; the right not to not be put out if they paid their rent, and the right to compensation for their improvements if they did leave. This Act applied in “the crofting counties” which in very broad terms can be imagined as lying to the west of a line from Elgin to the Mull of Kintyre.

Commemorative cairn at Braes on Skye
The cairn at Braes on Skye, commemorating the Battle of the Braes, one of the events that saw to the formation of the Scottish Land Court

In 1911 after much political in-fighting, the Small Landholders (Scotland) Act extended these rights across small tenanted farms all over Scotland. It also made some provision for new holdings but this was essentially to be driven by the Board of Agriculture with the Court having something of a back-up role. Nevertheless, the role of the Court was widely seen to create a radically new type of interference with the property rights of landowners and its early years were characterised by the consequences of this. The main body of conservative opinion, including the Court of Session judges, disapproved. Much newspaper and judicial comment was initially far from complimentary.

A word of warning

It is common to give two immediate warnings before saying much about the Court. The first is that although its predecessor was called the Crofters Commission, this had nothing whatever to do with the Crofting Commission as we now know it. The second warning is that the Land Court has nothing to do with land! This is plainly not quite true but it concentrates attention on the fact that the Court does not deal with questions of title and ownership of land and, in any event, that it only deals with agricultural land.

The work of the Court

The work of the Land Court is most succinctly described by saying that it deals with disputes about tenancies of agricultural land. Its initial function related to crofts and small-holdings. A “croft” to a lawyer is not a wee house or even a wee bit of land with some sheep on it. It is a form of land-holding. It is holding of land under a lease. In fact there can be circumstances in which a simple right to graze stock over someone else’s land is, in law, a “croft”. Crofters were tenants and it was to regulate and protect the rights of tenants that the Court was established. Some of its powers in relation to crofter’s rights do appear to involve rights in land. We deal with croft boundaries and rights of access to crofts but these are rights held as tenants rather than rights of ownership. We do, however, have a role in relation to enforcement of crofter’s rights to buy and that involves transfer of rights of ownership.

Although its origins lie in the protection of the rights of crofters the Court has, over the years, been given a wide variety of powers in relation to the tenancies of ordinary farms.

The Court has recently acquired another important jurisdiction. This does not deal with disputes between landlords and tenants but with disputes between farmers on the one hand and the Scottish Government on the other. The Court hears appeals from decisions of Scottish Ministers in relation to grants and subsidies under the provisions of various European Regulations relating to agricultural support.

The way the Court is organised

At present the Court has a Chairman and two Members (the “practical members”). The members are not qualified lawyers but people with long experience of agricultural matters. They were selected for appointment to the Court on the basis of their ability to apply that experience wisely and fairly to the type of disputes with which the Court is involved. The present Chairman is Lord Minginish, who was previously Deputy Chairman (as Sheriff R J MacLeod) and was appointed in 2014 following the retirement of Lord McGhie, who had held the post since 1996. The office of Chairman is equivalent in judicial status to that of a judge of the Court of Session.

The running of the Court is under the control of Barbara Brown, the Principal Clerk, who is a qualified lawyer. She works closely with the members when dealing with cases.

Many crofting cases are dealt with by the practical members. When they sit on their own to deal with cases they are known as the “Divisional Court”. This is a throwback to the days when Scotland was divided into different areas or “divisions” for the purposes of arranging hearings. Sitting as a Divisional Court, the member has the assistance of the Principal Clerk as legal assessor. However, the responsibility for the decision rests with the member.

In its first months the Court sat in crowded accommodation in the Parliament House, in other words, sharing accommodation with the Court of Session. However, it soon moved to splendid premises at 1 Grosvenor Crescent, with a view over St Mary’s Cathedral and its grounds, and it remained there until 2006. It initially had a large staff and required the whole building but in 1978 it was decided that there was room for the Lands Tribunal for Scotland to share the premises. Archie Elliott QC, the President of the Lands Tribunal, was appointed Chairman of the Court, with the judicial title of Lord Elliott. The sharing arrangement has continued to the present day. Lord Minginish is also President of the Lands Tribunal and the two bodies share premises although they operate as quite separate bodies. The Lands Tribunal deals mainly with urban matters. Broadly speaking, it deals with valuation of land, with the rights of the tenants of public sector landlords to buy their homes, and with the variation of restrictive title conditions.

In June 2006 both bodies were moved to share office premises at 126 George Street with a number of other Tribunals.

The history of the Court

The current work of the Court falls into three distinct categories: crofting, agricultural holdings and appeals. We can trace some broad aspects of the history of each. The Small Landholders Act of 1911 followed the work of the first Crofters Commission but it extended the rights initially given in respect of crofters to all Scottish landholders whose holdings were under £50 in rent or under 50 acres in extent. Looking back today, we tend to think of that as falling within the “crofting” jurisdiction although the Court still deals with smallholdings in some parts of the country. It was a jurisdiction dealing with very small farms. But in the crofting counties, at least, the small unit almost invariably had shares in common grazings. Many of the most difficult questions the Court has had to address have arisen from the unusual features given to rights in common grazings.

In the War years (1939 to 1945) the powers of the Court were increased under various Emergency Powers provisions. These were designed to ensure that farms were worked efficiently and Local Boards were set up with powers to eject inefficient farmers. The Court heard appeals from such bodies. It also had powers to compel use of land for agriculture and various powers in relation to assessment of compensation for rural lands compulsorily acquired. Most of these powers ended soon after the end of the War.

In 1931 the jurisdiction of the Court was extended to give it a limited role dealing with bigger farms. But it was not until 1948 that the work of the Court in relation to the adjudicating on disputes relating to “holdings” grew to a significant level. The Agriculture (Scotland) Act of 1948 extended the jurisdiction but that Act was swallowed up in the Agricultural Holdings (Scotland) Act of 1949. It was under the latter that disputes in relation to ordinary tenanted holdings, including powers to deal with rights of succession, came before the Court although the main thrust of the statutory regime left most disputes to be dealt with by arbitration.

It later became clear that matters of succession were better dealt with by the ordinary Courts. They tended to involve ordinary questions of succession law rather than matters requiring agricultural expertise. Other areas were also removed from the Land Court and emphasis was placed on arbitration as the preferred method of resolution of agricultural disputes. Accordingly, despite the impact of the 1948 and 1949 Acts, the volume of work dealt with by the Court gradually fell after the War years and staff numbers were reduced.

In the years prior to 1955 the Land Court had a range of administrative functions as well as its judicial role. However, much crofting regulation had been in the hands of the Secretary of State; in other words, civil servants. There was little interest in crofting as it had become incapable of providing a living wage and levels of public support did not then make up the shortfall. Crofting was revitalised by the establishment of the new Crofters Commission. At that time the Court lost most of its administrative functions and its jurisdiction in relation to assignations and bequests of crofts and apportionment and regulation of common grazings. However, it was given power to hear appeals from certain decisions of the Crofters Commission and it continued to have a wide jurisdiction covering matters such as boundaries, status of land, rents and resumption. An important new provision in 1976 was that when land was resumed — that is, taken back from a crofter by the landlord — the crofter was not only entitled to compensation for loss of the use of the land but was entitled to half the development value. This, of course, was an important benefit even if land was just resumed for building a house. But in recent years it has become a valuable source of income for crofters fortunate enough to find their land required for mobile phone masts or wind-farms.

In 1976, crofters were also given a right to buy their crofts. The Court was given the jurisdiction to enforce this right and to determine any appropriate conditions and the price. This was in accordance with a statutory formula based on rent and it led to a practice of the Court commonly being asked to review rents whenever there was a purchase.

Modern developments

Although there had been periods when the Court was very busy, there was a time in the 1980s and 1990s when it was comparatively quiet. The work of the Divisional Court went on but serious legal issues were few. In the mid 1990s successive chairmen were reduced to drafting memos trying to persuade Parliament to increase the jurisdiction of the Court so as to make proper use of the facilities it provided. Times have changed!

The advent of the Scottish Parliament has allowed more time to be spent on the domestic law of Scotland and many changes have been made to Scottish land and agricultural law which have a had a direct impact on the work of the Land Court. We have seen very significant changes in relation to both crofting and agricultural holdings which have not only increased the range of issues brought before the Court but have greatly increased the complexity of these issues. On the European side, regulations governing agricultural subsidies and support payments change with bewildering rapidity. The civil servants work hard to communicate the formal requirements of the regulations to working farmers but it is easy to get lost in the mountains of paper this produces. The Land Court has been given a new jurisdiction to deal with appeals from decisions of Scottish Ministers in relation to the various subsidies regimes established under the EU. The work of the Court has thus become very much more demanding in legal terms.

This is not the place to go into the detail of the law itself but four main changes in the scope of the work can be identified. As just discussed, the Court has a new appeal jurisdiction in relation to grants and support payments. We also have a new appeal jurisdiction in relation to crofting and a greatly enlarged jurisdiction in relation to agricultural holdings cases. The fourth change relates to two different types of new “rights to buy”.

Under the crofting jurisdiction the scope of appeals to the Court from decisions of the Crofting Commission has been significantly increased. Until 2007 the Court could only consider appeals relating to the what was known as “decrofting”. This was a process by which land could be declared to be free of the provisions of crofting legislation. This would allow it to be sold on the open market. Where a crofter exercised a right to buy, it was possible to ask the Commission to decroft. This was more or less automatic for house sites but not for other croft land. If the Commission declined to authorise decrofting, there was an appeal to the Court. There was also provision for the Commission to refer questions to the Court. But this was seldom used and was not the same as an appeal process. Under the recent changes, most decisions are open to appeal to the Court. So far, we have had to deal with appeals over both grant and refusal of apportionments and appeals over assignation of croft tenancies but the range of matters now open to appeal is almost unlimited. For completeness it might be added that such appeals would previously have had to go to the Court of Session by way of the rather restricted process of Judicial Review.

In relation to agricultural holdings all disputes between landlords and tenants of farm land can now come before the Court. That said, it is worth stressing that landlords and tenants are also now free to adopt other methods of resolving their disputes. For many years legislation imposed considerable restrictions on this but they can, for example, now refer matters for decision by an expert assessor, use a mediator or go to arbitration if they wish. They can agree what procedure is to be followed at arbitration in relation to any particular dispute. Until the 2003 Act, most disputes between landlords and tenants of agricultural holdings had to go to arbitration. Arbiters would be appointed by the Secretary of State — that is, by an official in the appropriate Department — and would be bound to follow a particular process and to set out their decisions in a very specific way. Parties could choose their own arbiter by agreement but the way in which the arbiter approached the matter was constrained by legislation. This led to a practice of arbiters appointing their own solicitors to act as clerks and eventually agricultural arbitration became a clumsy and expensive process.

The new full jurisdiction in relation to tenancies of agricultural land has given rise to a great variety of difficult and interesting issues. Some such disputes are not well suited to Court processes. For example, unless an important issue of principle was thought to arise, routine rent review would be better resolved with the assistance of a trusted independent valuer than litigated over in a court. Of course, such valuer would not get it “right” any more than a court gets such matters “right”. Rent is always ultimately a matter of judgment and assessment. There is no one correct answer. But if landlords and tenants agreed to regular routine review with the assistance of a different independent valuer each time it could be assumed that over the piece the average would not be far wrong.

We have been given two new jurisdictions in respect of rights to buy although this has not, as yet, been a particularly busy area for us. As noted above, crofters were given a right to buy their own individual croft land in 1976. This might, in theory, have allowed a group of crofters to buy out a whole estate but that was not the purpose of the legislation and it could not easily have been used in that way. Under the Land Reform (Scotland) Act 2003 it became possible for crofting communities to exercise a right of purchase of a landlord’s whole crofting estate and also, in limited circumstances, of adjacent non-crofting land. Where questions of law arise in relation to such applications reference can be made to the Court for determination. The right is one of compulsory purchase, in other words, the communities can compel the owner to sell. Under the Agricultural Holdings (Scotland) Act of the same year, tenants of farms were given a right of pre-emption. In other words, they have a right to buy if the landlord takes any steps towards a sale. The price in such cases would fall to be determined by the Lands Tribunal but other disputes would go before the Land Court.

In short, the impact of the legislation of the Scottish Parliament on the work of the Court has been immense. The work load of the Court in relation to difficult and important issues has grown enormously. We think that the Court is well adapted to the work it does and flexible enough to continue to do it effectively. We are satisfied that the constant mixing of farming and legal knowledge and experience allows a robust approach to be taken to issues of practical importance and legal complexity. In these times of change it would be misleading to say that we look forward confidently to the next hundred years but we do look forward confidently to continuing to provide an efficient and “user-friendly” service for resolution of legal issues involving the agricultural community of Scotland.