Justice and Home Affairs Committee, 09 Nov 1999

Meeting date: Tuesday, November 9, 1999

Official Report 254KB pdf

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Abolition of Feudal Tenure etc (Scotland) Bill: Stage 1

I see that everyone is here. We have Mrs Joyce Lugton and Mrs Micheline Brannan from the civil law division of the Scottish Executive justice department, and Norman Mcleod and Andrew Brown from the Scottish Executive office of the solicitor. Welcome to you all.

The general comments remain the same for this bill as for the Adults with Incapacity (Scotland) Bill. We are considering the principles of the bill, not specific details and amendments. We will return to specifics at a later date. I know that it can be difficult to separate the two, but I fear that occasionally we start going down a line of questioning that is best left until stage 2.

We will press on to questions because of the time constraints. I have some indication of the issues that members wish to raise. There are general issues that members are concerned about. Christine Grahame, who is trying to open her papers, wished to raise a point about absolute ownership, which you will be aware is of concern to many organisations, because by removing the feudal superiors and taking the ultimate owner out of the equation, a system of absolute ownership is being introduced. Christine, you wanted to talk about the role of the Crown.

Yes. I am beginning to think that this meeting is like a Kenneth Reid tutorial. He is a professor in the faculty of law at the University of Edinburgh and has an interest in conveyancing, which was not my strong point.

With regard to the Crown, several of the submissions that we received raised questions with regard to the dangers of abolishing the ultimate superiority of the Crown, and the matter of the Crown acting in the public interest. Do you think that those fears are unfounded, can you provide clarification on the Crown's role in the feudal chain, and how much of that role will be removed by the proposed act?

At the moment, the Crown has a conceptual role as the ultimate feudal superior, but how much that role leads to practical consequences differs from case to case. The bill specifies that the Crown's feudal rights will be abolished while leaving its prerogative rights untouched. The approach that was taken was to treat the Crown like any other superior; therefore, the bill specifically abolishes the feudal rights of the Crown, except in the case of enforcing maritime burdens because there was no other way to ensure that somebody would be able to enforce them.

It is difficult to see how, in practice, the Crown could represent the public interest in relation to land. It might mean the creation of significant public rights, in relation to which the Crown's role would be one of enforcement. That could have resource implications. Concerns about the Crown probably largely reflect concern about the use of rural property. It is not clear why people want to argue about the Crown's role with regard to urban property, for example, tenement flats, which are affected just as much by the feudal system as are rural estates. In any case, throughout the country, owners' use of land is already limited by planning laws. The planning system creates conditionality about the use of land and, in our view, preserves the public interest.

So you see no role for the Crown, given that we now have planning authorities and so on to act in the public interest?

It is hard to see what the role has been that we will be losing.

I may get into a quagmire with this question, but could you tell me what the Crown's prerogative rights are?

Prerogative rights are, for example, the right to confer peerages and to give royal pardons.

I wish I had not asked that question.

Does anyone else wish to contribute on the role of the Crown?

Christine covered what I wanted to know. Perhaps we should question the people who are advocating the retention of feudal rights for the Crown because we already know the position of the present witnesses.

Pauline, I think that you had concerns about when the provisions were coming into force.

Could I ask a question that follows on from Christine's questions?

Yes.

I did not want to leave this issue without raising a point of my own. Like Christine, I have been impressed by the submissions that say that no one will be acting in the public interest. The contention is that, by not having the Crown or someone acting in the public interest, the position of landowners will be strengthened, but one of the concepts behind land reform is that it should be done in the public interest. Surely there must be another idea that we can think of that would invent a public interest at the same time as abolishing the feudal system. There is a desire for that.

We can understand that desire, but on that matter I will make two points. First, in looking at the feudal system as it is now, it is not clear that the Crown has an existing role as ultimate feudal superior in preserving the public interest. It is hard to find where that role is exercised and to find examples of it, except possibly the maritime burdens, which the Scottish Law Commission has made recommendations about.

Secondly, in so far as the Crown carries out public activities in this country, it is usually through the activities of public authorities such as the Government, local authorities and so on. The planning system—the public law system whereby the use of land is regulated—is not affected in any way by the bill.

Do you wish to follow up that point?

No.

You indicated to me that you had questions about the timing of when the act will come into force.

I wish to raise that issue during the submission from the Royal Institution of Chartered Surveyors.

When is it anticipated that feudal tenure will be abolished, because it is not in the bill? Evidence was given to us that, effectively, there would be a two-year waiting period before the actual abolition. Is that still the case, and why was it decided that no date should be set out in the bill?

There are a number of reasons. The bill refers to the "appointed day", which is the day on which the feudal system will be abolished. The bill gives Scottish ministers the power to fix that date. That is partly to provide some flexibility. If one specifies a day in the bill, which then becomes primary legislation, and one gets the day wrong, it is more difficult to remedy the situation because there would need to be another bill to change the day. If a statutory instrument is used to specify the day, there is more flexibility to work out when the abolition can be achieved.

The Scottish Law Commission recommended that at least two years should elapse between royal assent and the appointed day. The reason for the time lag is to enable necessary arrangements to be made by people to adapt to the new law. In many cases, superiors will be able to reserve certain rights by registering a notice or an agreement and, in some instances, they may need to make application to the Lands Tribunal for Scotland.

It will be necessary for all superiors, including public bodies such as local authorities, to examine their estates to decide which rights they wish to preserve. In fact, we have had some representations that two years is too short a time; for example, the Law Society of Scotland feels that the time is too short. There are views on both sides of the argument.

From what you say, if this bill is passed in its current form, there will be uncertainty about when the date for abolition will be. You are effectively admitting that, even if a date is agreed upon, it might change, which introduces a level of uncertainty into the proceedings, does it not?

This matter can be re-examined during the stage 1 debate when ministers are present, and in the course of the committee's detailed consideration of the bill. Even if we are not able to commit ourselves now, a better indication may be given later.

With the caveat that, as long as it is not in the bill, the date can be changed in the future?

There is always a risk of change. However, I am sure that ministers would want to choose a date that was feasible, and would not choose a date with the intention of changing it. That would not be good practice.

Would it not be possible to put a line in the bill to say that, on the day that the bill is enacted, the appointed day will be two years hence?

Anything is possible in primary legislation, provided that it is within legislative competence. It is open to debate whether that would be the best way in which to proceed.

That would at least give us an opportunity to debate whether two years from the enactment of the bill would be an acceptable target date. If there is no mention of a date in the bill, there can be no debate.

Ministers might still want to make a statement of their intentions, which would allow members to debate the issue. However, the question of whether a date should be prescribed in the bill still requires to be discussed.

Section 65 of the bill introduces a prohibition of leases for longer than 125 years. Do you think that any restrictions will follow from that for the development of land, considering the strict environmental laws that now exist, and responsibilities for contamination?

I am not an expert on contaminated land, but I can say that, although the bill contains a provision for the prohibition of commercial leases that are longer than 125 years, soundings are still being taken on that issue. On the period of time, there is room to come and go.

Where is that room to come and go? Does responsibility for that rest within the setting up of the bill, with the Scottish Executive and the civil service, which are deliberating, or with members of this committee?

The bill sets the period of 125 years. Amendments to the bill could be lodged on that subject. Representations would still be received.

Will the Scottish Executive make recommendations on that in due course?

Through our advisory process, we will make ministers aware of all the different views that have been expressed.

That is one of the specific issues on which the policy memorandum invited the views of this committee. It is an area that was highlighted for further debate.

What is meant by the continuation of the feudal system by other means? Papers that I have read suggest that that should be avoided. What is the problem with that, in practice, if contracts are entered into in a free and open manner?

I shall begin to answer that question, but will invite my colleagues to contribute, as the issue is rather technical. It is possible to lease land on a long lease, such as 999 years, although, in practice, nobody foresees the possibility of the lease reverting to the landlord. The conditions that are imposed by the landlord are therefore the all-important aspect of the lease. It is not the ultimate repossession of the land—the length of the lease is essentially regarded as perpetuity—but the conditions that are imposed by the landlord that matter. The situation is therefore almost like feudal tenure. Feudal tenure is selling in perpetuity, but subject to conditions that can still be enforced by the original granter and his successors. I invite my legal colleagues to chip in at this point.

It would certainly allow the landowner to keep very tight control of what happens on the land. There are other parallels with the feudal system. Under a lease, as under the feudal system, there is very often a right of irritancy written in favour of the landlord. That means that, if a condition is breached, the landlord can take back the property. If the tenant has carried out development on the property, that would amount to a windfall to the landlord.

If, in the breaks in the lease in which renegotiation takes place, one created an opportunity to renegotiate the conditions—

I am sorry to interrupt, but a contractual right for the tenant to say to the landlord that they want to rewrite the lease is very rare.

I am trying to establish how many instances of long leases you think there will be. Do you think that they will develop dramatically, or is this a de minimis matter; in other words, will there be very few instances? The preference in Scotland is for freehold tenure. Are we inserting into the legislation something that does not need to be included, because it will happen very rarely?

I will have to be careful here, as I will probably end up expressing a personal view. However, if people can structure things in a way that is most favourable to them, there will be commercial pressure to do that. If people feel that they can achieve a control through leasing that they cannot achieve in another way, I suspect that there will be a temptation for them to choose that option.

You use the word temptation. I do not accept that there is anything wrong with a leasehold arrangement. The worry must be that there will be disparity between opportunity in England and in Scotland, because we will create two different kinds of framework. Is the Executive assessing whether any commercial disadvantage will result from the different arrangements that have been proposed for Scotland?

It is fair to say that thinking has not totally crystallised on this issue. We are acting on the recommendations of the Scottish Law Commission, and we understand that the commission is starting to receive representations from commercial developers and legal interests representing commercial developers that were not as evident when it was preparing its report on abolition of the feudal system. There is some scope for thinking in this area to develop further. However, I go back to what Mrs Lugton said about the length of the long lease being a matter on which we specifically requested the views of the committee. I am sure that you will receive representations on that subject.

I would like to return to this question with other witnesses.

That is perfectly okay.

I have a general question. I remember that, at the informal briefing that we received at the end of August, there were expressions of concern about the possibility that superiors might rush to reclaim the last vestiges of whatever feuduty they thought they could get out of people. We were concerned to establish whether there had been an attempt to estimate the number of people who might find such bills dropping through their door. Were you able to examine that issue and to come up with an indication of what the position would be, particularly in the run-up to the appointed day, whatever that happens to be?

I will refer the question to Mrs Lugton.

Following the informal briefing, we discussed this with the Scottish Law Commission. The commission said that it had not done any specific research into the amount of feuduties remaining, but it believed that most of them related to tenement flats and that the sums involved were likely to be very low—in the region of £2 to £5 per flat. The commission thinks that most other properties affected will be premises occupied by businesses, which are likely to have been located there for a long time. However, there will be some individual houses for which feuduty has not been redeemed and which may well be occupied by elderly people.

We were concerned specifically about the prospect of elderly people on tiny incomes suddenly getting bills through the door, as superiors attempted to catch up on unpaid feuduty that had not been claimed but was going to be collected before the appointed day. We do not have much clue about how widespread that may be.

I am sorry, but I think that that is the case.

If that is the case, that is the case.

There is evidence that that is happening at that moment.

We were concerned that, once the implications of this bill for superiors became apparent, they would attempt to maximise their economic position where they could.

We have received submissions from a major commercial firm in Edinburgh, which raised interesting issues about commercial leases, although they were not the firm's business. The impact on commercial leases in Scotland has now been addressed. The firm argues strenuously that we should be examining the law on commercial leases in Scotland contemporaneously with this bill and with something called the title conditions bill, which I did not know about, but which the firm claims is linked to the other issues. If everything is linked together, it will be hard to consider the proposed legislation without having sight of the title conditions bill. What is the position on a proposed act on leases for Scotland? I have other questions, but no more on this particular area.

I would like to add to Christine's point, which is a fair one. We are advised that this bill is one in a series of linked bills that will achieve the ultimate end. We have been told that we can expect not only a title conditions bill, but bills on real burdens, leasehold casualties and, as I understand it, the law of the tenement. Given that, how does everything fit together? Appearance is being given that this legislation is only the first piece of the jigsaw. I have a rather mischievous question. Is not the whole point of delaying the appointed day due to the fact that people know that other pieces of legislation will need to come into force, otherwise we will get in a muddle?

I am happy to answer all those questions. There is a package, but I want to clarify the situation. Title conditions and real burdens are the same thing. The Scottish Law Commission published a discussion paper on real burdens, which are basically the conditions attached to the holding of land. The commission has now decided that, although the consultation was on real burdens, the name used for the report and draft bill will be title conditions, so the draft bill on real burdens will be called the title conditions bill. That reduces at least two entities to one.

The work that was done on the law of the tenement resulted in a report and draft bill before the general election. The Scottish Law Commission is not pressing us to implement the bill on the law of the tenement at the moment, because it feels that once it has finished the work on title conditions, it will be able to simplify the provisions that are being recommended for law of the tenement, which is really just a subset of the title conditions that can apply to any property. Tenements are just a particular kind of property, and have a particular subset of title conditions to do with common facilities and so on. We accept, therefore, that it is sensible to wait until the bill on title conditions has been published before doing anything about the law of the tenement.

The package consists of, first, a bill on the abolition of feudal tenure, then a bill on title conditions and, finally, a bill on the law of the tenement. Leasehold casualties are a slightly different matter. Nothing we do in those three bills interacts with leasehold casualties and nothing in the leasehold casualties bill will interact with the other bills. Having said that, however, leasehold casualties can be regarded as part of the package in the sense that the law of property in Scotland will be tidied up and cleaned of anachronisms only after the leasehold casualties bill has been enacted.

I want to advise the committee at this point that I received a letter from the Minister for Justice this morning about the proposed member's bill on leasehold casualties. The letter says that the Executive would be prepared to support such a bill, which would be required to come to this committee. We will need to come to a decision on how we would deal with that, but we will reserve that for later.

I have other questions, but I wanted to ask about the law of leases. Will we address the problems that have been exposed by transfer of ownership from title to leasehold property in Scotland? There are so many ramifications that we cannot consider the value of the bill on its own without seeing the other adjacent bills.

It would be helpful to hear from the Scottish Law Commission on long commercial leases. In its sixth programme, it will be considering leasehold, and I understand that it intends to consider long residential leases. However, I am not sure whether it was planning to consider commercial leases. Some of my colleagues may know about that.

I think that it will not. We should perhaps step back a stage to the question about seeing the bill in the context of the programme. Property law is a large subject and a daunting one. That is why it was always assumed that this would be a staged project.

The Abolition of Feudal Tenure etc (Scotland) Bill, the title conditions bill and the law of the tenement bill are closely linked. They were always to be considered in stages because there is a great deal of administrative work to be done by property interests generally to secure an orderly transition from the existing state of the law to the new state of the law. For that reason, it was assumed that the feudal bill should come first to enable the necessary administrative work to be done before the title conditions bill is commenced. It is proposed that large parts of the feudal bill will not be commenced until the title conditions bill is also commenced. That is the programme that is proposed.

Are you talking about enactment at the same time?

The feudal bill will be enacted first and parts of it will be commenced to allow the administrative work to start, but part of it will not be commenced until the title conditions act is also in place.

It would have been helpful to the committee if the situation had been made clearer in regard to the three linked bills that are to be presented at various stages. We are proceeding on the basis of having to consider one bill, but we know that it will be part of a wider context that, so far, has not been presented to us, either in written or in oral form. That is unfortunate.

I now go back to my rather mischievous question, which may not sound at all mischievous now, but absolutely spot on. The bill is before us but a lot of it will not come into force. Do you agree that the reason for that is not so much technical as caused by the need to wait until other legislation slots in?

That is partly fair and partly not. It is certainly true that this bill must wait for the title conditions bill, but that is not because we are inefficient and could have done it much faster.

I am not suggesting that, but we are being presented with a bill that turns out to be not a bill in its own right, but one third of a set of linked bills for which there is an overarching programme and procedure that have not been presented to us before today.

The alternative to proceeding in that way, which I agree is not ideal, would have been to delay the introduction of this bill.

With respect, that is not the point that I am making. I understand the position that you are in. My point is that we have to discuss one third of the whole thing with you telling us that there is a reason why this bill is being done this way now but that other things will also affect it and be affected by it. There has been no presentation from the Executive about the overall question, and that is our concern. We are concerned that we will have to deal with this bill knowing that there could have been a better presentation of where the bill fitted into the overall pattern of legislation.

We have to wind up the session with these witnesses very quickly. Does any member have any further questions for them?

The Royal Institution of Chartered Surveyors has raised a couple of questions about sections 17, 18 and 19 on converting feudal burdens into neighbour burdens. The body has concerns about the definition of "human habitation or resort" and the strict application of the 100 m rule to both urban and rural areas, which can be very different.

Secondly, on section 22 about the reallotment of real burdens and the conversion of feudal burdens into community burdens, the institution raises the question of whether 51 per cent is a reasonable majority to carry such a decision and suggests that a two-thirds majority might be better.

There are two points to make about the 100 m rule. First, as that rule is a detailed provision in the bill, it is open to later debate. The Executive does not have a closed mind about any of the detailed numbers or quantities in the bill. Secondly, a procedure outlined under section 19 of the bill enables burdens that do not fall under section 17's precise definition to be preserved either by agreement between the superior and the vassal or by application to the Lands Tribunal.

The question about the 51 per cent or two-thirds majority is very detailed and could be debated later. However, we do not feel that it is a fundamental principle.

What are the principles behind the issues of compensation in the bill?

Two areas of the bill provide for compensation. The first is where the superior loses the right in future to demand feuduty. My legal colleagues will correct me if I am wrong, but I believe that the compensation formula that has been provided is based on the existing formula under which redemption of feuduty is compulsory for properties that have been transacted in since 1974.

Compensation is also provided for development value burdens. A superior might gift or considerably undersell a piece of land to the local authority on the condition that the land was used for a community centre. That local authority might later want to sell on that land to a developer for a housing development. The Scottish Law Commission has recommended that compensation should be paid to the superior for the development value that has been lost as a result of selling land for a particular purpose that is then sold on for a more lucrative reason. Such compensation is provided for in a different section of the bill.

Do you agree with the suggestion that an allowance should be made for a feuduty that has not been collected for several years?

Although that is not provided for in the bill, it is a detailed point that could be open for later debate.

If there are no more questions for the witnesses, thank you for coming to see us again.

I invite the witnesses from the Royal Institution of Chartered Surveyors to come forward: Lynne Raeside, Iain Hay and Alan English. As we are pressed for time we will proceed directly to questions on the submission.

You say that

"feudal burdens can play an important role in maintaining the amenity of an area".

Could you expand on that?

There are instances where the superior has an obligation to do that. In one example, a citizen decided he wanted to apply to register his garden as a site for the registration of vehicles. As the superior's agent, I was called on to intervene as the deeds stated clearly that the superior had an obligation to protect the amenity of the community concerned.

Would that case not be covered by the 100 m rule?

It might be, but that would put an obligation on the individual, which may be correct legally but a burdensome matter for the individual concerned, whereas the superior had an obligation at their cost.

What about aspects that are protected within feus in terms of planning? Should there be a handover period in which the feudal conditions should be part of planning conditions?

I refer you to a case dealt with by the Lands Tribunal—Pender v Sibbald Properties Ltd—in connection with a building in Glasgow where there was a title prohibition against using the property as a restaurant. Planning permission was granted but the superior objected to it. The outcome was a brave decision by the Lands Tribunal: that it could be a restaurant but not one that produced strong cooking odours. The planning system does not always cover all aspects.

In another very lengthy case, Ferguson v Burnside et al in Kilmacolm, the owner of the property was prohibited from building a house or allowing his hedges to grow higher than 5 ft. He allowed his hedges to grow higher than 5 ft and argued in the tribunal that, because of that, people who might be offended by his new house could not see it. Planning permission was granted for a house but the Lands Tribunal threw it out, saying that the conditions had to be adhered to. That illustrates the difference between planning conditions and the superior's conditions.

You have emphasised that there are advantages in the bill, but we must also consider the disadvantages.

The Royal Institution of Chartered Surveyors has said all along that a review is necessary, but that the good parts must not be thrown away.

It is altruistic to suggest that redemption values should be dropped. Instead of a redemption rate of 20 times the current valuation, you are suggesting that it should be dropped to eight to 10 times that figure. Those figures are up for review in any case and can be changed as the bill proceeds, but what is your reason for suggesting that?

Let us look at this logically. A redemption rate 20 times the valuation figure represents, in valuation terms, a yield of 5 per cent. The majority of feuduties are very small sums of money that cost a great deal to collect. As we have heard before, there is concern that some feuduties have not been collected at all. Because the duties cost a lot to collect, anyone who wants to acquire a superiority with the feuduty will not throw a large amount of money at it because it will not provide a good return.

The 20-years' purchase, as we surveyors call it, is an historic figure that is completely out of keeping with the current market. Whole superiorities change hands at figures of less than half of that figure. That includes all the other potential rights and the bits and pieces that go along with the right to the feuduty. It therefore makes no sense for the vassal to have to pay 20 times the figure just to buy out the monetary item.

What is your view of the issue that we heard being canvassed earlier about the length of commercial leases, which is covered by section 65? Do you have any comments or concerns about that?

We have considerable reservations about the 125-year lease. The primary reason is that the developer needs to fund the development of offices, shopping centres or whatever and funding may not be granted. I think that 125 is a borderline figure. Anybody who suggested a 100 year lease would not get funding. I think that if there has to be a figure—we do not think that there needs to be one—150 to 200 years would be more appropriate.

I would like to make two other points. First, the people who are likely to suffer are not only the developers, but the institutions, which would affect pension funds. Secondly, there are many instances where contracts are in place to undertake development of land in phases. A development may have six phases and the developer will have agreed terms with the owners of the ground and their funding sources at, say, 150 years. There is then a trigger time at which those leases kick into place. If those times are after the act comes into force, there will be severe problems for developers. I suggest that that can be dealt with by legal means, but I caution against setting the term at 125 years, full stop.

You appreciate that, as we have been told by the Executive, some of the detailed matters about percentages that you have raised will be dealt with at another stage of the bill.

I want to mention a point from your submission that has not been raised before, and I would like you to give us a simple example to illustrate your point of view. I suspect that the kind of rights that would previously have belonged to the feu superior will turn into landlords' rights with the development of leases in Scotland.

Section 73, "Saving for contractual rights", states:

"As respects any land granted in feu before the appointed day, nothing in this Act shall affect any right (other than a right to feuduty) included in the grant in so far as that right is contractual".

Your explanation on page 7 of your submission states that you are concerned about

"potential difficulties in the contrast between saved contractual rights and obligations . . . and the superior's abolished rights and obligations".

You then give examples such as sheltered housing and developers or builders selling properties on particular estates. Can you give me an example of what such contractual rights and obligations in the deed of conditions would be? They could be quite onerous.

Let us take as an example a development of sheltered housing where there is an obligation in the original contract between the developer and the purchasers that becomes a deed of conditions or a community burden for the developer to provide services such as warden services. The developer builds the property and sells to the first purchasers to move in. He has a contractual obligation to those first purchasers and it is our understanding that that obligation will be retained after the passing of the act.

The problem arises when one, or the majority, of the original purchasers has sold. A community burden is then set up. Under the proposed legislation there will be an opportunity for all the people who have purchased to vary that community burden. For example, they may vote not to have a warden any longer. However, the initial purchasers still have a contractual cross-over with the original developer and that may create difficulties.

That explains the situation. Your submission also states:

"We cannot see an answer".

Should we perhaps leave it to the lawyers at the Executive to see an answer if they agree that there is a problem?

Yes. [Laughter.]

I am sure that we could assist, but we would want everyone to be dealt with on the same footing.

I can see what you are saying. The contract is a personal contract between the developer and the first purchaser and it does not pass to subsequent purchasers.

That is correct. That situation prevails in many other areas of legislation connected with the feudal system, but this is the one that we particularly wanted to highlight.

Do you foresee an explosion of leasehold tenure in Scotland with the abolition of the feudal system? Will people buy 99-year leases in Scotland, as they do in England, rather than have freehold tenure?

I do not foresee it exploding. The majority of long leases are ground leases and the majority of ground leases are leases by public authorities, which, for policy reasons, do not want to dispone ground.

I agree. I do not think that that will be a problem.

My final question concerns another technical matter that should probably be dealt with later in the passage of the bill. Your submission points out that many landowners have a huge number of titles and that the time scale for putting in a notice after the appointed day is not appropriate. Is it your belief that, in cases that involve forestry or local authorities, simply detecting the titles that are held will be a massive undertaking?

Yes. The Forestry Commission is a good example, and large local authorities put restrictions on use in shopping centres and industrial estates for good reasons, because management functions may not fall within planning legislation. In my view, those bodies have a duty to ensure that they are acting correctly, and they need time.

One problem that has arisen from the bill is the risk that legislators may believe that the planning system will cover the abolition of the feudal burdens and feudal conditions.

Planning considers the public interest and the larger picture—whether something fits into a locality. In contrast, the feudal system deals with personal matters, which are perhaps not relevant to the public, but which are extremely relevant to the private situation.

I want to ask about the comments you made about sheltered housing. The number of housing complexes could present a real problem. One of the problems is the requirement to maintain services. A second problem is the loss of control—for those who live in the properties—over management costs. Do you have anything to say about linking the two things—to preserve services and control the costs?

We are concerned that people who are less able to fight their corner, because of age or disability, should be protected and that those services should be maintained for them. As has been said before, we do not have an administrative answer to the problem. It is a matter that is worthy of considerable research and debate. We just want it to be resolved.

Am I right in thinking that, currently, under the feudal system, a burden would exist in perpetuity?

Yes.

Are you concerned that that will no longer be the case?

Either it will be abolished or it will be converted to a neighbour or community burden.

Are we not dealing with the community burden in the neighbour burden?

The community burden will not necessarily be abolished, but the proposed legislation presents an opportunity to amend it. Currently, amending a burden, or a condition in the titles for a group of properties in a development, requires 100 per cent agreement of all proprietors. That is a major problem. In my management practice, I am aware of only one case in 30 years where such a change has been made. Once the opportunity to alter and amend those burdens under the proposals has gone, we will not get it back. We must be sure that it is worthwhile before we remove it. That is why we are concerned about a simple 51 per cent majority.

You make many references to compensation in your document and you seem concerned about it in several contexts. Regarding the vassal paying back to the superior, we have heard that you would like the redemption factor to be based on a multiplier of between eight and 10. You then go on to talk about the instalment scheme and you are mindful of the burden that might fall on the vassal, particularly in cases of financial hardship. You recommend that, in cases where payments can last for 10 years, the period should be reduced to three years. That seems to be a big jump.

Our concern about the 10-year period is that, in effect, the abolition will simply be deferred. There will never be a payment. It is almost like saying that, in 10 years' time, we will no longer pay feuduty. Someone being compensated for the loss of an income requires the payment of a sum. We agree that you cannot insist on that sum being paid all at once. We believe that if it were to be paid over three years, at half-yearly intervals—the way feuduty is currently paid—that would be reasonable. We should bear in mind that under the current proposals of 20 payments, a £1,500 payment is comparable to a £75 feuduty. A £75 feuduty would be attached to a fairly valuable piece of property. From that point of view, the repayment should be reduced from the proposed 10 years.

The next point you make is about sales. You link that to the fact that the balance has to be paid within 42 days and suggest that that provision should be extended to cover the sale of a property by a vassal. Should the solicitor not have a duty to get that done? Someone who is selling their house has all sorts of things on their mind and 42 days seems too short a time.

Yes, anyone would expect their solicitor to do that. I am sure that that is what happens in practice.

Our concern is that the obligation to settle the monetary element of the feuduty on sale continues after the passing of the act.

That is the case under the 1974 act. Is there a time limit on the payment of that duty? I do not think that there is.

The current situation is that the duty should be settled at the point of sale.

And you want to give people 42 days to pay.

If an instalment has not been paid within 42 days, there is an obligation to pay the entire sum. In addition to that, we want the situation that applies at present to the point of sale to continue.

I would like to ask you about part 3.6 of the report, which says:

"While such superiorities may have become dormant, perhaps due to collection ceasing, there must therefore be a fair method to deal with such cases."

What would be a fair method?

We are concerned about this because, at the time of the local government reorganisation, there was a great deal of confusion about who owned what and whether ground burdens had been redeemed.

In some instances, ground burdens were due but local authorities refused to acknowledge that they were liable to pay them. There should be some kind of facility whereby those problems can be sorted out.

As registration of title develops, so will the situation improve. It is amazing how many local authorities claim not to own a property when asked to pay feuduty on it and then, two years down the line, when they find out that they can build a hotel on it, claim that they do own it.

In the meantime, the superior, who might be trying to tidy up his feuduty situation, is left in a no-man's land. Improved land registration and improved information on property ownership will lead to the situation not being as much of a problem.

You have some views on the time scale for the introduction of the bill, particularly in relation to converting feudal burdens to neighbour burdens. What do you think the time scale should be for the bill coming into force?

We are concerned about the situation as regards large estates and large public authorities. They will have to go through all their titles and property holdings to identify where there are matters to be covered. Our concern is that two years could be insufficient time to do everything. It will be expensive and require time, legal and professional advice and the inspection of properties to ascertain whether anything relevant needs to be covered.

We are not suggesting that the bill should not proceed; we are saying that there should be longer for such bodies to deal with the next stage. We heard some of the debate when the previous group of witnesses was here. When a superior, in connection with a developer, wants to serve a notice to reserve a development right, that is also part of the exercise.

You seem to represent mainly the interests of superiors. Other issues must be considered, such as those that concern vassals. People have suffered at the hands of superiors who have charged large sums of money for burdens. We must address those interests to balance up our consideration.

The Royal Institution of Chartered Surveyors, under a royal charter, is apolitical. We are obliged to serve the public interest. If you consider our paper, you will recognise that we believe that the vassals are already suffering and are having to pay too much to clear the monetary burden. At the same time, the superior—whether you like him or not—has an interest in land. In all fairness, that should be compensated for. The institution is trying to express a balanced view. We do not believe that we are expressing the superiors' view; we are trying to express a totally impartial view.

You said that you do not believe that the leasehold commercial market will develop dramatically. Is there any point in section 65? Why not just leave it out? Are we worrying about something that will never be of real concern?

I could accept that solution, as it would reserve the rights of the developer. I do not think that people will rush out and start granting leases instead of selling by the feudal system.

Do you foresee any disadvantages in the property market if there is not that flexibility? Do you think that Scotland is at a disadvantage compared with England and Wales, which is what has been suggested in some of the submissions?

It is possible that institutional investment in properties would diminish. I am not saying that it would, but that is a possibility. If an institution could lend on a 100 year lease or a 150 year lease, it would probably choose the 150 year lease, wherever it was.

I understand that what you are saying about brownfield sites is that the longer the ground lease, the more attractive the site is. If it is restricted, and the market value falls, there is less chance of redeveloping a brownfield site. Is that correct?

Yes. Fewer funding institutions would be willing to participate in the development exercise. There is an end-stop of a couple of hundred years, we believe. RICS Scotland believes that a lease of 200 years is not unreasonable. However, one of 999 years is just foolish.

I must bring this discussion to a close. We keep getting involved in specific arguments, but we have identified that there is concern about the length of commercial leases. Although there may be debate about their length, the evidence—especially from you—suggests that it should be longer than 125 years. Thank you for coming to the committee today and for your written submission.

I ask the witnesses from Scottish Environment LINK and Land Reform Scotland to come forward.

We are running behind time. Please bear in mind the fact that we are considering the principles of the Abolition of Feudal Tenure etc (Scotland) Bill and keep questions directed towards that. At stage 2, we will look at specific issues in terms of amendments.

I welcome John Digney and Elizabeth Leighton from Scottish Environment LINK, and Peter Gibb, Robin Callander and Andy Wightman from Land Reform Scotland. As we are extremely pressed for time, there is no possibility that all five witnesses will be able to respond to every question, so please designate one of your number to respond to each question.

You suggest retaining the Crown as a way of protecting the public interest. When that point was put to the Scottish Executive, it replied that that would recreate the feudal system. What is your response to that? The Scottish Executive says that, in this context, the Crown serves no useful purpose and that it cannot see any point in retaining it. Can you convince me otherwise?

I agree with the objective of the Scottish Law Commission's original report that the rights that the Crown shares with other feudal superiors should be abolished. The report specified those as the rights to create new feus, to exact payment of feuduties and, as a feudal superior, to enforce land conditions. The report stated that the Crown need not, having lost those rights, be called the paramount superior and that no other rights of the Crown, whether of feudal origin or not, should be affected.

My concern is that section 56, which is at best ambiguous, does not deliver those objectives; it abolishes all rights pertaining to the paramount superiority rather than the specific rights that the Crown as a superior shares with other feudal superiors. I suggest that the way of resolving the issue of the Crown would be for section 56 to specify the rights that are abolished.

When the Law Commission was asked what the other rights of the Crown were, it said in its report that it could not disentangle the rights that attached to the Crown by virtue of its paramount superiority from those that attached to it by virtue of its rights sovereignty.

The Scottish Executive witness was fairly economical when asked what the other Crown prerogative rights were. The witness referred, for example, to peerages and pardons. In fact, the prerogative rights of the Crown include regalia rights and the ownership of the sea bed and foreshore. An awful lot of rights attach to the Crown within the Scottish system of land law. We should, therefore, make it clear that what is being abolished are simply the rights that the Crown shares with other paramount superiors, and that none of the other rights is affected. That was the intention of the Law Commission. Section 56 does not deliver that.

I want to ask about the idea of the Crown as absolute superior changing its role so that it can act as a public guardian of the land—I believe that you are interested in that idea. In the Highlands, there is great concern about land use and management. How would that concern by allayed by that new role for the Crown? According to the Executive, the Crown would not just be left as ultimate superior, but would have to be given a new role as a public guardian.

Furthermore, how would the change impact on urban areas? The control of land use might give rise to benefits in rural areas, but what about in the country as a whole?

It seems that there was some confusion earlier. It is not being proposed that the Crown be given any new powers or burdens. The Executive witnesses were wrong to suggest that the proposal might involve expense.

Through the Crown, the public already hold the ultimate ownership of land in Scotland that is held under the feudal system. Therefore, there is already a public interest in all land. The bill should ensure—the wording should do it precisely—that ultimate ownership, the various other prerogative rights and rights that attach to either sovereignty or to the paramount superiority, which cover all land in Scotland, are not affected in the abolition of the Crown's rights as a feudal superior of particular lands. The role of the Crown to act for the public interest exists in the ultimate ownership of all land. This is not a question of creating new rights and thereby incurring expense in any way.

The previous witnesses talked about how the public interest could be served by planning permission or by statutory law. The significance of this issue in the longer term is twofold. First, if one abolishes willy-nilly rights that we cannot specify—there is no clarity in our legal system as to what rights would be abolished by abolishing all paramount superior rights rather than specific ones—there will be unknown consequences.

Secondly, the Scottish Office and the Law Commission were ambiguous in saying initially that they intended to create a system of absolute ownership. That was modified to say that the new system of land ownership that the bill would introduce would be one of outright ownership. The policy memorandum now describes it as a "system of simple ownership".

I am not sure quite what we are setting out to do. The danger of creating a system of absolute ownership is that, by getting rid of the Crown's ultimate ownership of all land in Scotland, we would abolish that public interest. That would expose us to an American-style situation in which, in cases relating to public interest legislation, people are in a far more powerful position to claim compensation from the legislature, which would mean that public interest legislation could be constrained in the longer term.

I have a question for Elizabeth Leighton. Based on your briefing paper, it seems fair to say that you are disappointed with the bill. You claim:

"The Policy Memorandum simply states ‘The Bill has no effect on sustainable development.'"

Will you briefly explain your concerns for our benefit?

Our briefing outlines several points where we believe that the policy memorandum is thin on detail and does not include sufficient information for the committee to give the bill detailed consideration. The issue of the Crown is just one example.

The Scottish Executive is, as you know, required to take account of sustainable development as well as the impact of legislation on island communities and so on. The policy memorandum states, in one simple line:

"The Bill has no effect on sustainable development."

I find that incredible. The bill is about Scotland's land—that means our natural resources, land or sea. Surely what we decide in this bill about how that land is to be owned and used will have a fundamental effect—positive or negative—on sustainable development in Scotland.

The Scottish Executive could be asked to provide further detail on how it came to its conclusion. If it is true that the bill has no effect on sustainable development, I wonder whether we want this bill. Do not we want bills that will foster sustainable development for our future?

You made the specific point that the bill may lead to the Government having to pay compensation to landowners—if landowners have to implement conservation measures, for example. Robin Callander alluded to the general issue of compensation, but how do you see that circumstance arising from the bill?

As you can imagine from my accent, I have some experience of how the land ownership system works in the United States. There, the issue of compensation for private landowners who are affected by public interest regulation has reached the point where it has a stranglehold on Government bodies. That is true when the US Congress, state legislatures and federal agencies try to enforce, or even develop, legislation that will act in the public interest, whether for environmental or health and safety reasons. The system has become so expensive that it has limited the ability of public agencies and Government to introduce such regulation. The situation may even be exacerbated in the United States by a further strengthening of landowners' rights.

I think that it would be a mistake for Scotland to go down a similar route without first carefully considering exactly what kind of land ownership system it wants to create. That applies not only to this bill but—as we heard in the previous evidence—to successive bills that will fit together in the overall context of land reform.

The objective given in the policy memorandum is that the new system of land ownership will be simple and uncluttered. Is that sufficient explanation to tell us whether the new system of land tenure will deliver sustainable development?

Does anyone from Land Reform Scotland want to comment?

The European convention on human rights allows the state to take certain measures if that is deemed to be in the public interest. That public interest test will be tested fairly soon in the courts in response to legislation emanating from this Parliament. It would strengthen the position of the legislature in Scotland if, rather than exercise public interest through statute and public law—as currently represented by the Crown—a clearly articulated public interest were embodied within the land tenure system.

The danger of getting rid of the Crown in this context would be that that public interest defence would be unavailable to the legislature, which will almost certainly want in future to legislate in various ways on how land is owned and used. A move towards a more absolute system strengthens the hands of those who have the rights under such a system, whether it be you or I with our private dwellings, or large estates or corporations. It is a matter of political principle that we should not throw away an important locus of the public interest within the tenure system—if we did, it may come back to haunt us.

You are saying that, at the moment, land may be owned but the Crown has the ultimate superiority, and that the bill will remove that ultimate superiority. However, my instinct—it is only an instinct—is that the problem is more theoretical than real. Tell me where I am wrong and give me a specific example of something that you see happening—perhaps hypothetically—that will cause the huge difficulty.

There has been talk within the broader land reform debate about, for example, standards of land management and how bad landowners will have their land taken away. Clearly, that is not going to happen, but there will be instances when the legislature wants to take action to protect amenities, for example, or to increase the burdens on landowners to protect the environment. In such circumstances, the legislature will—quite naturally—be challenged by those whose interests are affected.

If the legislature does not have a public interest defence within the land tenure system—if it cannot say, "Excuse me; ultimately we are the owners and so can change the terms and conditions under which you hold title"—its case will be weakened.

The USA provides a pertinent example of what happens when a country has an absolute system of ownership—and that system has existed only for a couple of hundred years.

But the United States is different, so I am not persuaded by the analogy. I find it difficult to envisage a situation in which someone could be blocked, at the moment, from doing something because of legislation, but in future the courts would say, "We can no longer block that because the Crown is not the ultimate superior."

Let us look at the 1980s legislation on sites of special scientific interest. Landowners demanded compensation for not doing things that, in some cases, they may not have been planning to do anyway. They demanded compensation because the Administration at the time was ready to concede that point. However, those demands would be less readily accepted by the courts if the legislature could say, "This action is in the public interest because there is a public interest in all land that is represented by the Crown." If that argument is not available, it will become more difficult for the legislature to enact legislation.

To an extent, that example is theoretical because we do not know what the detailed consequences of the bill will be. The issue is: why throw out something of value simply because the drafting is a bit haywire?

So how do you propose to express the public interest?

May I attempt to clarify matters? In consideration of the principles of the bill, the issue that arises relates to the stated intentions of the bill. It is the stated intention of the Executive and the Scottish Law Commission in the draft report not to affect the rights of the Crown, other than the rights that it shares with other paramount superiors. The bill's wording does not achieve that. Those hypothetical questions need not be confronted—the bill can be reworded to make it accurately achieve its intentions.

The principal issue is that the treatment of the Crown should be fair. The bill includes saving provisions for the Lord Lyon's powers, which are not even within the jurisdiction of the Parliament. The inclusion in the bill of a provision to the effect that the Crown's rights, other than those that it shared with other paramount superiors, were also saved would avoid the problem, which is now of widespread concern.

Are there other questions?

I am trying to follow this, but it is a bit esoteric for me. Convention has always been a great mystery to me.

What you are saying is that, if the section were changed, the Crown would have an interest and title to appear in Scottish courts to assist on behalf of the Scottish people. Is that correct?

No. We are not talking about introducing anything. You will know—and it is stated in the Scottish Law Commission's reports—that the ultimate ownership of all land in Scotland that is in the feudal system rests with the Crown. We are not trying to abolish the Crown's ultimate ownership, nor has that been the stated intention of the Scottish Law Commission, as far as one can tell. However, because of the way in which the draft legislation is worded, it could be construed that the intention is to abolish that interest.

You are saying that we should be careful to ensure that it is stated explicitly that the Crown retains ultimate ownership, although we are taking away some of the rights that it would have had as a superior? Should that be done explicitly?

Yes, to specify the rights that are being abolished. The Scottish Law Commission spelt out in its reports what those are. The Crown should no longer be able to create feus, enforce burdens or extract payment duties—that is what should be specified, then the rest is simplified.

I think that I understood that. The Crown would be left with the title and interest to intervene in court cases. It could represent the interests of the Scottish people.

In theory, yes. I was slightly put off by your use of the word title.

Title and interest.

The Crown does not, in a sense, formally have title to land.

I meant title and interest assumed in terms of the courts.

Are you not basically keeping the feudal system and getting rid of only a few of the powers? The point of the feudal system is that everything is held from the Crown. What it does in between, and what the powers are, is all up for grabs. If the position of the Crown is left—as you want it to be—the feudal system is retained, albeit with some powers removed.

No. The question of what the feudal system is could be debated all day. It has been in place for 900 years, and one might consider that all Scottish land is part of the feudal system. In section 1 of the bill, the Scottish Law Commission and the Scottish Executive have defined the feudal system as a superior-vassal relationship. In that sense, what is being said is, "Yes, let us get rid of the feudal system."

The Crown, no more than anybody else, should have a feudal superior interest in any particular property. At the moment, the Crown has certain rights to unowned property such as the foreshore and the seabed. Members may be aware of the Crown patrimony, by which the Crown has title to Holyrood and places such as this. The lawyers have not yet given us a clear indication whether that is part of the Crown's identity as a paramount superior, and which areas belong to the Crown by virtue of prerogative. When we abolish the feudal system, as we should, we must treat the Crown with particular care, so that we do not throw away anything that may be deemed valuable later.

Why should the Crown have any right whatever over my half acre?

The Crown should have certain rights over the whole of Scotland. It would not have rights in your half acre that were different from the rights that it holds on behalf of the Scottish people over all Scotland's land. The significance of that is that the sovereign rights about which we are talking—the prerogative rights as well as the paramount superior rights—relate to the identity of Scotland as a territory and the jurisdiction of the Parliament. The Scottish people might consider that the Parliament, in its democratic role of representing them, should have a responsibility to protect its interest in the land of Scotland as a whole—not feudal rights in particular plots of land.

Why can the Parliament not do that simply by planning the legislation that it chooses to enact?

The exertion of statutory influence is within Parliament's power but, as has been explained, statutory legislation can result in compensation for landowners. If the landowners have relative ownership of the land, the proposals for the way in which land is owned will be undisturbed. However, if the Crown retains ultimate ownership, the balance of compensation will be different.

The point is not that something new should be introduced but, as the convener said, that the fundamental principle of the act as it relates to the Crown should specify exactly what is being abolished.

I thank you for coming. We have had your written submissions, which made clear the areas that you were concerned about. Many issues that were raised today have been taken on board.

I ask Professor Rennie to come to the table. Thank you for coming. I am sorry that you have been kept waiting and that we are pressed for time. You are here on behalf of the conveyancing committee of the Law Society of Scotland. Would you like to take a minute or two to say something about the bill in general?

The Law Society of Scotland is broadly in favour of the bill and its principles, which are to abolish feuduties in their entirety as land burdens, subject to payment of a redemption compensation.

We are also in favour of a system of ownership—call it absolute, simple or anything you like—that is not in strata.

We are in favour of the proposals to retain certain burdens that might be enforceable after the appointed day by a former superior who satisfies the criteria that are set out in section 18 and others.

I presume that you heard the discussion before you came to the table. It was suggested that we spell out the rights that the Crown would retain, particularly in relation to public interest. Do you have a view on that?

Yes. We are dealing with a bill to abolish—I emphasise that word—the feudal system. It makes no sense to abolish the feudal structure and retain the paramount superiority of the Crown. If that happens, we will not have abolished the feudal system. The bill will have to be radically altered if that is the case.

I am sorry, but I do not think that that is what was said. It was clear that Land Reform Scotland wanted to abolish the superiority rights, but the Crown would be left with prerogative rights.

That is not what I understood from the evidence that I heard. I understood that the superiority rights would be abolished in regard to individual properties but that the Crown would retain paramount superiority over land, which would give it some sort of public interest in land—an interest that does not exist under the feudal system at the moment.

At the moment, the Crown cannot intervene in a feudal dispute between a vassal and a superior in Bishopbriggs. One cannot appeal to the Crown, as it has no role to play in the current feudal system.

As I understood the discussion—I have to say that I might not have understood it all—a new and enhanced role for the Crown was proposed. That role would still be tied to some form of paramount feudal superiority.

So you are not interested in retaining any aspect of public interest? Who would represent the public interest in land issues?

Currently, as feudal superior, the Crown does not represent the public interest.

Are you saying that currently, there is no public interest, in that sense?

Not in the feudal system. The Crown exercises the public interest through the Government.

Can you see any practical benefits in Robin Callander's proposals?

Frankly, I cannot see any benefits.

What about the compensation for environmental legislation?

I could not see how the Crown was supposed to intervene. The Crown acts through the Government. Robin Callander seemed to suggest that the Crown would somehow oppose its own legislation or have some powers of intervention. I could not see how that was intended to work.

I was trying to understand it, too. I listened to the idea of retaining the Crown, and I thought that it was a political argument, not a legal one. The idea behind it—right or wrong—was that the people should be the ultimate owners of the land. That was wrapped up in an argument that, because of the American model, compensation would be affected. No one could give me a specific example, but apparently, if people had absolute ownership, Government proposals could somehow be blocked in a way in which they could not be if the Crown was still the overall superior. Could you see how that would happen?

That is the proposal as I understood it. I could not see how the fact that the Crown retained some sort of paramount superiority, with no rights to enforce any burdens, because the feudal structure below would have collapsed, would present the Crown as the owner of the land for the people. The Crown, as paramount superior, does not own the land for the people; the Crown owns it for the Crown.

Will you comment on Elizabeth Leighton's evidence about America, where the idea of absolute ownership has meant that companies are able to extract compensation if environmental obligations are to be placed on the way in which they use the land? I realise that we are talking hypothetically, although in America it is no longer hypothetical. Further down the line, will a similar set-up develop in Scotland if that form of absolute ownership is introduced?

The Americans work under a completely different system of jurisprudence; I would not pretend to be an expert on that system. They have a written constitution that enshrines certain rights, such as the right to bear arms. We have no such constitution—there are no enshrined rights. We are fettered right, left and centre by laws relating to land use. I cannot see how some new right to compensation would arise if it were not already provided for in legislation because, instead of holding land from the Duke of Hamilton and thence from the Crown, we would have absolute, simple ownership. I cannot see why that change would make compensation claims more likely.

Did you want to ask another question, Christine?

I wanted to ask about the other adjacent, or linked, legislation. Do we need to see the other bills before we can go back to the principles of this one? We have to consider the knock-on effect on commercial leases as well as the effects of the title conditions bill and the leases (Scotland) bill, and I do not know what those bills will say. What is your view?

I sat on the working party of the Scottish Law Commission when the abolition of leasehold casualties bill was drafted. That bill does not affect the feudal system, nor does it affect title conditions; it concerns leases and, in particular, long leases. When something goes wrong and somebody tries to get something from somebody else because of land, everybody blames the feudal system and says that it is time that we got rid of it, but the leasehold casualties bill is a separate matter.

The title conditions bill is closely linked to the Abolition of Feudal Tenure etc (Scotland) Bill. The Abolition of Feudal Tenure etc (Scotland) Bill looks backwards, at the feudal system as it used to be. The title conditions bill looks forwards, at the burdens and conditions and their status after the abolition of the feudal structure. With a feudal system, the superior is the focal point of ownership and of the enforcement rights. When the feudal superior goes, the new bill will have to consider who in future will have the right to enforce—be they neighbours in a neighbour burden or members of a community in a community burden.

One bill looks back and dismantles the old system. The new bill looks forwards. I see the benefits of taking the two together. The appointed day, whenever that is, must be carefully considered. Both bills should probably come into effect on the appointed day.

Professor Rennie, you have managed to clarify how the bills work together and I thank you very much for doing that simply and briefly. If you will bear with us for a few more minutes, there are one or two small questions before we close the meeting.

Professor Rennie has clarified the very point that I was going to ask about—whether it would be better to consider the backward-looking Abolition of Feudal Tenure etc (Scotland) Bill with the title conditions bill that will legislate on future arrangements.

Do you agree that some difficulties might be caused because it is only at this stage in our consideration of the first bill that we have discovered that there is to be a forward-looking bill? Would not it have been better to have had sight of that bill?

That would have been better. I have had the benefit of sitting on the working party with the Scottish Law Commission both on the abolition bill and on the title conditions bill. Indeed, we are to meet again in December, to consider the responses to the consultative document on title conditions or real burdens. In a sense, I have been living with both bills and it is therefore easy for me to have a broader view. It must be difficult to take the broad overall view that must be taken if one has seen only one bill, especially where the former superiors have reserved rights to enforce the 100 m rule, for example.

You are the Law Society of Scotland's expert on conveyancing. Will the Abolition of Feudal Tenure etc (Scotland) Bill reduce solicitors' fees for conveyancing and will the title conditions bill add to them?

There is absolutely no possibility of solicitors' fees being reduced. [Laughter.]

Thank you very much, Professor Rennie. We are extremely grateful for your brief appearance before us, which has been very useful.

You are free to go. The official reporters may also go, but I would like members to remain behind for five more minutes.

Meeting continued.