Local Government and Transport Committee, 14 Nov 2006

Meeting date: Tuesday, November 14, 2006

Official Report 262KB pdf

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Petitions

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Common Good Assets (PE875)<br />Listed Buildings<br />(Consultation on Disposal) (PE896)

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Common Good Land (PE961)

In item 4, we will be taking evidence on PE875, PE896 and PE961. The petitions all deal with the issue of common good funds, on which we took evidence earlier. I welcome the three petitioners to the committee: Miss Mary E Mackenzie, who is responsible for PE875; Sally Richardson, who is responsible for PE961; and David Harvie, who is responsible for PE896.

PE875 is about safeguarding by legislation heritable and moveable common good assets. Historically, common good stretches back 800 years. You already have some notes from me, which I will introduce briefly. You already have some notes from me, which I will introduce briefly. Audit Scotland's recommendation on stewardship of common good includes marking heritables on Ordnance Survey maps, using geographical information systems. That is shown on your maps, marked in red. There is an example of safeguarding moveables in the extract from the system that has been used by Glasgow art galleries, museums and library services since 1996. Collections have itemised records showing details including their acquisition, history, access number—as marked on the object—and updated movements. The museum records go back to 1870.

My current views on safeguarding common good assets are more detailed than those that I expressed in September 2005, and I have extended the proposals for possible future legislation.

This all concerns 194 or more Scottish burghs, many of which lack current legally recorded common good funds. Councillors are not told when they are elected that they are now trustees of common good funds. There is a four-year gap between council elections, so the entirety of common good assets could disappear before electors can vote for new councillors.

In save-the-planet mode, I say that playing fields, and even golf courses, which are needed for the young and the obese, may be fast disappearing to developers, while parks and cared-for open spaces, which are needed as lungs for cities and as walking spaces for everyone, also disappear to developers. Both those types of place are probably part of the common good, but they are not recorded as such.

Thought must be given to community-owned development trusts; to community buy-ins; to the Scottish Executive's plan to recover rights to the sea bed and foreshore from the Crown Estate commissioners; to reopening farmers markets; and to the acceptance of bequests, gifts and artefacts. Those would all be part of forward-looking, democratically accountable common good legislation.

The present situation in Scotland is like a jigsaw that is slowly being put back together again. New legislation would help to complete the puzzle, and it would help to co-ordinate people in every community to that end. We would then have a complete picture of Scotland's common good assets and, if a piece were to go missing, it could easily be traced through complete and accountable records. You will note the example in the submission accompanying PE875, in the extract from the January to March 2006 edition of Preview Glasgow Museums Magazine, to which Mary Mackenzie has referred.

In the past, wealthy businesspeople would share their success with their communities. I refer to the philanthropists of the Victorian era. Nowadays, wealthy businesspeople strip communities of their assets with the support of the local authorities, although those local authorities are meant to be safeguarding the assets on behalf of their communities.

I will begin with a question. To whom do public listed buildings and common land truly belong? That is surely not uniquely a legal question. Is it adequate simply to claim that they are owned at the whim of a council or one of its committees? Perhaps we need more rigorous legal definitions.

Gratuitous disposals of heritage assets not only directly reduce and devalue local and national heritage; they compromise and prevent the community's ability to protect, enjoy, use and further contribute to that continuing heritage. Such assets have typically been donated in perpetuity, specifically for the recreation, enjoyment and benefit of the inhabitants of a burgh or town, with all councillors acting as trustees. Where the moralities that motivated the original donor are ignored, disposal can be more offensive, and it can often go directly against the donor's intentions. The purpose is too often seen as a blatant attempt to raise so-called found money to plug a hole in a council's accounts or to free up land for development and the generation of tax revenues.

We recognise that financial strictures are rigorously applied and that councils have reduced financial leeway. Lamentably, however, they are all too prepared to indulge in the kind of priority setting that always results in the derisive accusation that a listed building must be regarded as a millstone rather than an asset. No one should expect a council single-handedly to carry the burden of securing the future of complex buildings with structural and revenue problems. However, in our experience, there is a woeful reluctance to consider alternative means.

Requests to establish a public trust with a broad, experienced and imaginative membership and to seek the funding not often available to a local authority never get beyond the first informal airing. The insensitive impetus to make an instant buck while offloading future responsibility always seems to prevail. In one case involving an attempted sale of common good land, the council was evenly split in the face of strong public dissent. The provost used his casting vote to permit the sale and said derisively to objectors, "You can have your say in court." They did, but the process took five years at the Court of Session. The objectors won the case and the appeal, but it cost time, energy and money. The case exposed objectors to substantial financial risk. Incidentally, the common good land in that case was not included by West Dunbartonshire Council in its submission to Andy Wightman in the preparation of his recent book; it did not take the council long to lose sight of it.

Our urgent proposal is that all councils that wish to sell or otherwise dispose of inherited assets, such as listed buildings or common good land, should be required to obtain clear public consent in a process that is legally defined and monitored by Parliament.

Thank you for those remarks. Members will now ask questions.

I thank all the petitioners for putting their case. They are to be commended for bringing the issue on to the agenda in Scotland. Obviously, we would not condemn any council without a hearing, so I expect that we will take evidence from councils in due course.

I am interested in the possible ways in which we could legislate to secure a better system, in particular those in the list appended to the submission from Mary Mackenzie. It contains a number of recommendations—including the proposal that there should be a complete record of common good assets to be held by each council—that seem to me to be no more than common sense. The record would include a proper description of the assets and contain information such as the date of acquisition and details of the rental value. Another recommendation is for the appointment of archivists and people to administer the records and to take other measures to let people in Scotland know what the common good assets are. The lack of such information seems to me to be the fundamental problem. Once people know what the common good assets are, there might be more of a debate during a local election campaign about what should be done with them.

I support many of the petition's aims, but I want to focus on number 6 on Mary Mackenzie's list, which I am less sure is a good idea. I do not have a fixed view, but I want to get a debate going about it. It states:

"all proposed disposals, including sales of both heritable and moveable assets must be duly notified/advertised in advance, including in the local press, to allow third party objections."

That seems to be a reasonable proposal, but you go on to say:

"Where six or more on the Voters' Roll register objections, a public hearing must be held, expenses to be met by the Local Authority, not by Common Good Funds."

Is that trigger perhaps a little on the low side? Given that the cost of holding a public hearing could be substantial, might there be a case for a rather more onerous trigger than six people registering objections? If there were many public hearings, it could detract from the moneys that local authorities have to run their basic services.

The problem is setting a figure. If I said 1,000, that would be a very difficult number to reach. It is better to start the bargaining at six and move up.

Do the other witnesses have a view?

I suspect that, realistically, six is rather low, but I am intrigued by Miss Mackenzie's response to your question.

Yes, we do not usually conduct our proceedings as a negotiation, although perhaps we should take a lesson from you and change our practice in that way too.

A hundred is a nice round number. I would be perfectly happy with that.

Do you agree that the justification for a hearing is to involve the public; that that justification is at its strongest when the assets are at their most valuable and significant; and that there would not be any point in having a hearing for a proposal to dispose of assets of fairly minor value, which would be a matter of administrative good practice? Six voters or 100 voters should not prevent the sale of some premium bonds that are worth a few thousand pounds. That is not what you are driving at. You are saying that the public should have a say, even at a hearing, in matters relating to a major piece of land, a park or a building of historical significance.

It is not fair to point the finger, so I will just say that I have been involved in this. Right now, in a small town where people have independent views and do not normally come together, all the notable organisations have come together unanimously, verbally—violently almost, in the press—but we have made no impression whatever on our three trustee local councillors. One councillor has stated—and the others agree—that they are not there to represent the views of the people in their wards. I am not saying that they must agree with those views, but they should be willing to represent them.

There are good councillors and bad councillors. If councillors ignore a whole community, whose members have given reasons for their views, sent in letters and done everything legal that can be done, and refuse to represent them, which means that the whole council, which makes the decision, is unaware of those views, what are the voters to do? Our aim is to build into our system a better opportunity for amicable agreement and consensus rather than disagreement. However, at the moment the voters are left out in the cold.

I am aware of the difficulties in always finding a consensus in Scotland, which seems somewhat elusive. Am I right in thinking that the council to which you were alluding is Scottish Borders Council?

I live in the Scottish Borders now.

Who could disagree with the argument that a complete record of common good assets, heritable and moveable, should be held by each council? That is a perfectly commonsense approach.

I want to build on the question that I asked Andy Wightman earlier. He made the point several times that councils already have a legal statutory duty to steward their assets. Our researchers in the Parliament have pointed out to us that, under section 93 of the Local Government (Scotland) Act 1973,

"assets in a common good fund must be held separately from a local authority's general fund account".

We have a situation where our local councillors, who are democratically elected—we live in a representative democracy—take decisions on disposal of assets and are trustees of, or are in charge of, the accounts. I do not understand why you are asking the Scottish Parliament to create a new law in addition to the laws that we already have, given that, it seems to me, the issue is good management of the assets.

There is considerable confusion between accounts and funds. That is the problem. The common good funds should contain complete records of what are in them. Accounts can be shifted around. In one of the papers, I have given the committee an example of a cross-mix within one council, whereby about eight departments are involved in handling common good finances, but they do not talk to or consult one another. The auditors can audit only what they can see. There is no suggestion that anyone is deliberately lying about the funds or concealing them, but there is a lack of clarity. One has only to read through the law to find out that different judges make different statements, which are contradictory. Lord Osborne, for example, seems to hate common good. We cannot go on in this muddled way. It is time that someone took a cold, hard look at the existing laws and decided to pull them together to make sense of matters. There is no point in having a Scottish Parliament if we cannot do things.

I hear what you say, but the point that I am making is that we are really talking about best practice in the management of common good funds.

And how would we control that?

That is precisely the point that I am making. Audit Scotland has the remit of ensuring that best practice is adhered to in all the public accounts of public bodies throughout the country. Should the target not be to focus on ensuring that the laws that we have already are properly implemented in practice? I do not have to say to you that I do not think that we need to produce even more legislation in which we instruct our councillors what to do. Surely in a representative democracy—

The legislation goes back 800 years and it is muddled. It is high time that we put it in plain English. As I have said, councillors do not know that they are trustees—they do not have a clue. That causes the biggest headache throughout Scotland.

I have one other line of questioning. I am not convinced that it is inappropriate that councillors should make decisions about the selling off of common good assets. Councillors are elected by the local people. In a representative democracy, if councillors should not be responsible for the funds that they manage, who should be responsible for them?

Councillors are supposed to be responsible for them, but they do not know what their responsibilities are, so they cannot use them. They are unaware of the law.

So we are talking about best practice.

Technical terms do not help.

You just said that councillors are not aware of the law.

They are not aware of their responsibilities as trustees. We could argue the matter till kingdom come. There is an opportunity to tidy up a huge bunch of contradictory statements that have been made over centuries. Let us stop tinkering about and spending money on lawyers. If I want to disagree with my council, I have to employ a Queen's counsel because it will already have done so. The system is not as democratic in practice as it is in theory. I am not attacking councillors; I am suggesting that all of us are not being practical and that we should put things right.

I have some questions about disposals of land in common good funds. As I understand it, the issue for determination by a court is not the purpose for which land is being sold, but whether the council has the right to sell it. The issue is whether the land that was bequeathed is alienable or inalienable. Is that right?

Yes.

Gifts comprising a mixture of cash, property and so on will be made to a council—in the past, they will have been made to a common good fund—to which no particular purpose is attached. As far as land in that category is concerned, there is no issue about whether it is sold, because it is simply an asset of a fund.

But it might be a park.

That is true, but it might just as well be an investment asset. For example, someone might have given to the council a farm that was subject to a lease, from which it derives rental income. The land might not be a park at all.

I think that I am failing to put the case properly. The common good is for the community. The community usually hears that something is cooking after everyone else has heard. By the time the community pulls itself together, has meetings, discusses things, gets down to business, rakes up money to employ a lawyer or a QC and all the rest of it, things have happened to such an extent that the situation becomes difficult and antagonistic instead of consensual.

There is an enormous gap—that is not the way to express it. There is a lack of information. When councillors have an idea that they would like to do something, there is a lack of consultation and they are under no obligation to go through certain processes with the community before community assets are disposed of.

We have a problem now with three councillors giving away 16.4 acres to the director of education for 99 years. That was wrong because too large a sum was involved, so it had to go to the full 34 councillors for a decision. No one instructed the 34 councillors about local opposition. In the meantime, I have searched the minutes of the council's meetings and I can make the ridiculous statement that if I come back as a butterfly in 99 years and look for the records of all that has happened and what the conditions are of the arrangement, they will simply not exist.

I understand the point that you are making. Do you accept that land will be held as an investment in the same way that stocks, shares and money in the bank are investments, and that land is freely alienable and can be sold by the council? That land might be in the common good fund. Equally, there might be other special, dedicated land, such as a park, golf course or some other community facility; in such cases, the law on whether the land can be sold is applicable if there is an issue about whether, rather than for what purpose, it can be sold.

You are very worried about the sales, but I am very worried about the lack of records because we do not have them.

I accept that we need records, but I am just trying to make clear that there is a distinction between land that is held as an investment, which might be an asset of a common good fund, in the same way as stock and shares, and land that has been dedicated or might have been given to a council in the past as a park. Perhaps Mr Harvie could describe his experience in West Dunbartonshire.

As I understand it, the issue that was resolved in court was not the purpose of the sale, but whether there was a right to sell. Is that correct?

It was both.

Could you describe the piece of ground to which you referred when you were talking about five years of litigation? What was that piece of ground and what was the issue?

It was part of Dumbarton common, which is approximately 12 acres of parkland in the centre of the town. The local authority had offered it to the Scottish Court Service for the construction of a new sheriff court and car park. Whether it was common land was not at issue; that was agreed by everyone concerned, which was something of a blessing. The issue was extremely controversial in the town.

There is a whole issue to do with public participation that is completely missing here.

I accept that, but I am trying to get to the legal issue that was at stake. Did the council have the right to sell the land or was there an issue around what the land was being used for?

It was both. Lord MacLean, the judge, was particularly scathing about the fact that the Secretary of State for Scotland, as it was at that time, had not been called as a party in the case. That was his objection, although it does not relate to the two issues that you have mentioned. That was his legal sticking point. I am not enough of a lawyer to qualify that.

So that determined the case. In effect, the case was decided by a procedural question whether certain parties were competent.

I would not say that that was the sole deciding factor, but Lord MacLean found it particularly significant. It came as a surprise to me, but then I am not a lawyer.

Can you remember the year of that judgment?

I can give you the judgment here and now.

If you can put it on record, we will be able to read it later.

The judgment is dated 11 July 1996, and is Lord MacLean's opinion on the petition of West Dunbartonshire Council.

That is helpful. We will have a look at that.

We have heard about the issue of the priority given by councils to recording what is in the common good fund and the fact that there has been good practice in some councils and not so good practice in others. Is there an issue about whether we should support a common good fund in the first place? It seems that the common good fund just gets put to the back of the queue and dealt with only when all other council business is carried out. Perhaps we should decide to look at this matter in a new way. What if we had something that was not given this second-class status and was within the ownership of the council? Have you considered that? I am not advocating such a move; I am just playing devil's advocate.

Can you ask a much more concise question?

At the moment, there is a common good fund that is managed by the councils—

There should be, but often there is not.

Is that an argument for scrapping the common good fund and bringing such matters within the councils' full ownership? Is there another way of managing this matter to ensure that councils give it more priority than they do at the moment? I am not advocating this position; I am just playing devil's advocate.

The councils already have the power, but they do not know it. They do not know that they are trustees. I know that I am harping on about that, but this is the problem. They do not tell the population what they are up to, which is why splits emerge. When we ask for a list of our buildings, we get involved in terrific arguments. Indeed, £1,000 had to be spent on a QC before we could be told about the councillors' decision to spend certain money, and then £3,000 had to be spent on another QC on another matter. Surely if our laws were clearer, that sort of thing would not need to go on.

But you do not want these assets to be managed in any way other than through the common good fund.

Absolutely.

Mike Rumbles asked about concerns that elected members' stewardship of common good assets is not living up to the local community's expectations. Have you raised your concerns with the Standards Commission for Scotland, which is responsible for ensuring that councillors carry out their duties?

The commission is not terribly interested when we bring matters to its notice.

But have you brought your concerns to its notice?

I have already drawn to its attention my concern that councillors do not seem to be responsible, in the sense that they are not representing the views of the people in their wards. It is getting to the point that various people are wondering whether to vote at all if councillors are not going to represent us.

What would happen if the Parliament did as you wanted and firmed up the legislation, but the councils simply said, "Sorry, but we're just not going to bother recording this"? As Mike Rumbles pointed out, refusing to provide information is currently against the law and, indeed, Andy Wightman made it clear that recording this information is a legal requirement. Instead of simply adding to legislation, should we not ensure that the trustees—in other words, the councillors—live up to the community's expectations and that, as elected members, they do what they are required to do?

We brought the matter to Audit Scotland, which said that common good heritables should be listed on Ordnance Survey maps. I think that members have an example of such a map for the Borders. I am suggesting that that should be done by law throughout Scotland, so that when a developer comes for the first time to propose a development, the map could be put on top of the developer's plan to show immediately, without wasting time, that a certain piece of land is common good land. That would avoid the problem and there would be other things that could be done with that land. It would not stop development, but it would create a pause in the process.

At the moment, many development proposals go through because of total ignorance on the part of the councillors, who simply do not know. The officials are not particularly interested, perhaps because the Parliament has never made it part of their job or told them, "It's time you paid attention to this." There may be a need for legislation, or for tightening up of legislation, but at least we should start with something, rather than continuing to put off a decision on the matter, because there will soon be no land left.

Andy Wightman might be able to comment more academically on the matter, but it seems that we have anecdotal evidence that the whole system of management of common good accounts has so withered on the vine that it is a piecemeal procedure when it does take place. There is considerable suspicion that that piecemeal, casual procedure is quite different in different local authorities. It seems that there is substantial room for a major improvement. The idea that people can just hang around until the next election and then attempt to vote a council out is hopeless. Meanwhile, we are losing assets left, right and centre.

The issue seems to be that the common good fund has been set aside from the council and that the council is not involved in the day-to-day running of those matters. You would not expect a council not to submit its annual budget—there is no way that a council would fail to do that. However, in relation to the common good, there appear to be situations where such practices are not being carried out. Can an argument be developed about how to make the management of these funds a more integral part of what happens in local councils? As Andy Wightman said, the funds were set up in the days when there were burghs in place. Is there an argument for reforming common good funds to make them more in line with the workings of the councils, rather than trying to continue with the way in which they operate at the moment?

There may be. It seems to me that, in different areas of the discussion around the subject, we can consider different ways of managing individual aspects, but looking at it in the round reveals that major restructuring would be required, and that such restructuring would have to be common to all local authorities. It could not be a matter of everybody trying to deal with the issue in a different way because they were not terribly sure about it.

That brings us to the end of our questions, so I thank Mary Mackenzie, Sally Richardson and David Harvie for coming before the committee to give evidence. We also heard evidence from Andy Wightman earlier today. No further evidence sessions are scheduled, but at some point we will discuss whether there are other parties from whom we want to hear before we respond fully to the petitions. In due course, when we feel that we have heard sufficient evidence, we will come to a conclusion about any recommendations that we want to make, and then we will correspond with you to let you know our views.