Land-related legislation has come a long way since a battle on Skye, reports John Forsyth
A hundred and thirty years ago this week the crofters of the Braes community of Skye took on their landlord, Lord Macdonald, the sheriff, sheriff officers and a detachment of 50 Glasgow police in what quickly became known as The Battle of the Braes.
There was evidently a lot of noise and shouting as stones were thrown by crofters and skulls cracked by police batons in return. On the day itself it might have been difficult to identify the winner in the laird’s attempt to evict the crofters who had complained about his expropriation of common land to sell for sheep-grazing. However, as they would say in 21st-century terms, in the longer view it was a comprehensive PR disaster for Lord Macdonald.
Journalists present sold their narrative of the events throughout the United Kingdom. A media pack descended on Skye. A quick ballad was run up to glorify the resistance. Questions were asked in Parliament about the law and the laird and the ruthlessness with which they combined to throw inconvenient families off land they had lived on and farmed for generations.
A commission, chaired by Lord Napier, was set up in 1883 by the Liberal government to review the imbalance of tenant and landowner rights and responsibilities in the Highlands. Its recommendations led in 1886 to the Crofters Holdings (Scotland) Act and the establishment of a commission that would adjudicate on disputes about rent, security of tenure, boundaries, access and rights to compensation for improvements.
Its jurisdiction was limited to the ‘crofting counties’ but in the first decade of the 20th century its evident success – though not necessarily popularity among the landowning families – led to the Small Landholders (Scotland) Act 1911 which extended across the country the regulation of tenant farm leases.
That was the act that established the Scottish Land Court which opened for business in April 1912 and whose centenary is being marked this month.
There will be a book, No Ordinary Court: 100 Years of the Scottish Land Court, a collection of essays to be published by Avizandum later this week. Contributors include Professor James Hunter, Professor Ewan Cameron, Sir Crispin Agnew of Lochnaw QC and Lord Justice Clerk, Lord Gill.
Members of the five-strong land court ‘bench’, court staff and other legal and political figures will be travelling to Skye on 28 April to pay their own respects at the cairn that marks the site of the Battle of the Braes.
On 11 May Lord Gill will formally unveil the window taken from the original land court building in Edinburgh’s Grosvenor Crescent and which is now on the wall of the court room in George Street that has been the land court’s home since 2006.
Then it will be back to business as usual. Though ‘usual’ is not a description that has characterised the evolving activities of the land court over its lifetime.
For a start, the bench comprises a chairman, a deputy chairman and three ‘practical members’ who are not lawyers but know about farming. A majority of the court’s cases are dealt with by one of the practical members sitting alone with the legal support of the principal clerk.
Hearings are held in a variety of informal venues – from schools to village halls, and hotels to farm buildings – and at flexible times that suit the parties or travel arrangements for the judge. Hearings in Shetland, for example, are arranged around flight times from Sumburgh.
And the court has a statutory obligation to include some Gaelic speakers among its members. Lord McGhie has been chairman since 1996. In his office, excusing the clutter of boxes on the floor – “I’m in the process of revising the land court rules” – Lord McGhie sees the Gaelic obligation turning full circle. “A century ago there would have been parties who were more comfortable saying their piece in Gaelic. There may have been occasional ‘selective monolingualism’. It’s modern practice across all courts to offer a translation service for non-English speakers though I don’t recall it ever being requested. However, there is a renewed general obligation in Scotland to facilitate Gaelic and I see no need to stand apart from that.”
In his essay in the centenary volume, deputy chairman Sheriff Roddy John MacLeod explains that pleadings were unlikely to be in Gaelic when it was primarily a spoken language – “ … those who were fully literate in Gaelic were almost certainly fully literate in English also.”
Lord McGhie clearly loves his job – both the legal aspects and the opportunity to get out and about. “Site visits are crucial. No matter how well the pleadings are written you can often only understand the issues if you get out and look. A farmer will see an entirely different picture when he looks at a piece of land from the solicitor or advocate who is arguing the case in the courtroom.”
The tensions in the recent discussion about allowing ‘McKenzie friends’ – non-lawyers who can assist a party litigant in court (now accepted in Scotland as ‘lay assistants’) – largely passed over the head of the land court. “We have always had them though I don’t think we gave them a name. We just thought of them as ‘folk that help’ a party present his case as clearly as possible to the court. They have been invaluable, although I recall the occasional argument between them and the party they are helping.”
As its first century wore on the crofting element of the land court’s caseload fell away, though the ‘right to buy’ in 1976 generated a fresh round of boundary disputes and more recent settlement of arguments when crofting discovered the rent that comes with phone masts and wind farms. The land court has also had responsibilities added, not least in adjudicating disputes between farmers and Scottish ministers in relation to European regulations on agriculture support, grants and subsidies.
Two land court decisions were recently overturned in the Court of Session, invoking articles of the European Convention on Human Rights and the mysteries of establishing the open-market value of farmland where, by dint of European farm support, no true market exists. The agricultural press has since been exploring the entrails.
In one of the cases the problem lay with the Scottish Parliament when it passed the Agricultural Holdings (Scotland) Act 2003 which contrived to give tenants transitional protection in the period before implementation. “Smart solicitors,” says Lord McGhie, “saw the new legislation coming. Factors were running around in Land Rovers up until midnight posting notices to quit, not realising they couldn’t be withdrawn later.
“I feel strongly about the need to improve legal insight into new legislation. Drafters need to know not just about the subject but about how the courts work. In fact, the whole protective machinery surrounding farms and farming is out of date. It is maybe time for a completely new and fresh approach.”
The next 100 years beckons.