Justice and Home Affairs Committee, 17 Nov 1999

Meeting date: Wednesday, November 17, 1999

Official Report 311KB pdf

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

I welcome the witnesses who are here to give evidence for the Abolition of Feudal Tenure etc (Scotland) Bill. I understand that, for unavoidable reasons, there is a change to the witnesses who are named on the agenda. The Scottish Land Reform Convention is an umbrella group, which comprises a number of smaller groups. I will ask somebody to give a brief explanation of how that works. We were supposed to have Alison Elliot of Action of Churches Together in Scotland, but I understand that Graham Blount is here instead, because she is stuck in Brussels. We have Gavin Corbett from Shelter, and Jim Lugton from the Scottish Council of Voluntary Organisations. Andy Wightman, who gave evidence on an earlier occasion, is here too.

Could you give a brief explanation of how the Scottish Land Reform Convention works, given that each witness represents a slightly different organisation? We will then go straight to questions. Thank you for your written submission. That will help to focus our attention.

The Scottish Land Reform Convention was set up to stimulate and conduct debate in civic society about land reform generally. The convention comprises Action of Churches Together in Scotland, the Scottish Trades Union Congress, the SCVO, and a number of other organisations, which are primarily from the voluntary sector. It encourages debate not only on the two bills that Parliament is considering but on the on-going land reform agenda.

Andy Wightman is an adviser to the convention.

I want to ask about the matter of abolishing the ultimate superiority of the Crown, on which we had evidence last week, from Robin Callander and Professor Rennie. I was rather taken back by Professor Rennie's total dismissal of the idea; he thought that there was no practical use for it. Does Andy Wightman have any response to that?

There is some confusion about that topic. To be blunt, the whole constitutional position of the Crown and its role in the feudal tenure system has not been subject to adequate analysis and debate in the past.

The Abolition of Feudal Tenure etc (Scotland) Bill and the proceedings leading up to it have been dominated by the conveyancing profession to such an extent that, at times, the conveyancing profession regards land tenure as a subset of conveyancing. However, conveyancing is a very, very small subset of land tenure. With respect to those who have been involved, there has been a tendency to view the arguments from a narrow, legalistic point of view, rather than on a wider basis of public policy and constitution.

We should perhaps put to one side the debate about the role of the Crown. What was being argued last week was the case for a simple, technical redrafting of section 56 that would allay the fears of those who think that there would be major implications of abolishing the role of the Crown, but would not affect the interests of those, such as Professor Rennie, who think that the Crown has no role to play. At a later stage of the bill, perhaps we could propose a reworded section 56 to address those concerns, without getting bogged down at this stage in the policy debate, which is still unresolved.

I asked about the role of the Crown last week, but I am happy to leave that matter until a later stage, as Andy Wightman suggests.

Members seem to be uncharacteristically silent.

We are all exhausted.

Does the Scottish Land Reform Convention foresee any other difficulties? Are there any other problems with the bill that you would like to highlight?

Our primary concern has been to assert that there is a public interest in land and that it is unrealistic to separate land tenure as a legal issue from the impact of land use, management and ownership on people and communities.

We think that there might be some difficulties with the consultation process. For example, the idea of conservation burdens has been introduced fairly late in the process, without any opportunity for people other than those who proposed it to respond to it and consider its implications in greater detail.

Allow me to develop that argument a little further. We are particularly concerned that some of the content of the bill on burdens may lead to difficulties for organisations such as the Corstorphine Trust in Edinburgh, which owns a substantial area of land in the Corstorphine area. That sort of body has not been involved in the process as yet, and may not appreciate the consequences of this type of reform. There are considerable numbers of similar smaller trusts in towns and villages scattered throughout Scotland. We feel that engagement in the consultation process by such bodies is a vital part of the relationship between civic society and the Parliament and that, in the preparation of the legislation, greater thought and consideration should have been given to it.

Another aspect is important. If there are no specific safeguards for those bodies, there is a real danger that proceeding too rapidly on wholesale abolition will merely close the door on the public policy interest in land. The Scottish Council for Voluntary Organisations, as a gathering of civic societies, would like that public policy interest to be retained.

Could you spell out exactly what you mean by the adverse consequences for such bodies as the Corstorphine Trust?

I would choose the words "potential adverse consequences", because, until the specific content of the bill has been examined by those bodies, neither they nor we will be in a position to assess what the consequences might be. To date, they have been excluded from the consultation exercise and, in some cases and from the information that we have received, they might not even be aware that the debate is taking place.

I wish to add to Jim Lugton's comments. The categories of burdens that have been retained are maritime, neighbour, common facilities and conservation. I do not think that anyone has problems with the categories of neighbour and common facilities, as they are sensible. The category of maritime is in direct response to the interests of the Crown Estate commissioners, but I do not want to get into a debate about that.

However, I understand that the category of conservation has been introduced only because the National Trust for Scotland was concerned that it would lose its ability to control the fate of property that it had bought and restored—under the small houses scheme, for example. Therefore, the bill contains a series of burdens that have been developed, principally in response to the individual interests of those who originally responded way back in 1991. We argue that the consultation process has been flawed, as the Law Commission's report was published in February, a letter went out in June inviting people to comment on that report by August and then the bill was published in October this year. The people who were invited to comment in June could do so only if they could afford £22.50 to buy the Law Commission's report. In addition, the detail of feudal tenure is so complex that most people simply cannot get a handle on the issues.

In a range of circumstances across Scotland, it could be deemed to be in the public interest for burdens to be retained. It could be argued that conservation is one such circumstance, although that has big implications, which should be explored further. Just because the National Trust for Scotland wants conservation to be retained does not mean that other interests in society will be happy that their land could be saddled with burdens from bodies such as Scottish Natural Heritage, which are to be approved by the First Minister. There will be a big debate about that.

There are other interests, such as the Corstorphine Trust, which has been mentioned already and which I understand is a democratically elected body that owns the superiority of the village of Corstorphine, and housing interests—perhaps Gavin Corbett could address that issue. In other words, there are interests in society that own superiorities or that would be able to use the mechanisms of superiorities to advance not their own individual interests but an interest on behalf of the community. Those people have not had an adequate opportunity to explore the implications of the bill for their interests. They might wake up in a couple of years' time to realise that the functions that they fulfilled in the past—preserving the amenity of Corstorphine, providing for social housing, or whatever—are no longer available to them.

So, you do not think that the way to advance or safeguard the civic interest is through what you call a democratically elected body such as the Corstorphine Trust. Rather, you think that that should be done through democratically elected bodies, such as the Scottish Parliament or City of Edinburgh Council, which have a civic interest in how land is dealt with.

Yes, but it is a matter of concern if superiority interests might no longer be available to a body that owns them, although they are not held to benefit the body individually for profit but are held for the benefit of the community as a whole. It would be of particular concern if the body were democratically elected. The matter goes to the substance of the bill, not the wider issues about protection from the Parliament. The Parliament will have to ensure that the implications of burdens that are being conserved—and, possibly, those that are not being conserved—are fully explored. Our argument is that they have not been fully explored, as the consultation process has been inadequate.

I wish to echo what Andy said in respect of one aspect of the bill. A confusing series of statements and information has been released on the consequences of the bill for the udal system of landholding in parts of Shetland.

The Deputy First Minister was inconsistent when he said, in reply to a question from Mike Watson:

"The proposed legislation will also abolish some other archaic forms of land tenure and types of payment. It will not, however, abolish udal tenure, which is already non-feudal."—[Official Report, Written Answers, 30 June 1999; Vol 1, p 29.]

Subsequently, in paragraph 211 of the memorandum to the bill, which deals with section 70 on interpretation, we were told:

"The definition expressly includes land which was not actually held on feudal tenure but which because of its nature might have been (for example, ground owned under udal law)."

Despite those two statements, we find in part 1 of schedule 11 to the bill, that the Udal Tenure Act 1690—

Mr Lugton, please could you give more specific references? You talked about a previous statement by Jim Wallace, for example.

I can provide that.

That would be useful.

In part 1 of schedule 11 to the bill, on general repeals, we find the proposal to repeal the Udal Tenure Act 1690. Those three statements are not consistent.

Can I take up Andy Wightman's invitation to bring in Gavin Corbett of Shelter? Perhaps Gavin can outline Shelter's concern and interest in the bill.

We have some questions about the process. Our organisation was not one of those that received a letter from the Executive about the bill, and that puzzled me.

Andy Wightman referred to burdens. It is unclear why the bill specifically includes conservation burdens, when there has been a lively debate in the past 15 years—particularly in rural areas—about ensuring that much-needed affordable housing is maintained as a public asset. I am talking not about adverse consequences, but about the potential of the land tenure system. There is a distinction between housing in an open market and housing for social need. I would have hoped that we could talk about that as part of this process. We might consider a burden related to social housing. That is not adequately covered by the current planning and financial systems. That potential has not been fully explored, and I am not clear when it will be.

Do you think that part of the problem was the admission that the convener managed to extract at the previous meeting, that there is a series of bills: one is the Abolition of Feudal Tenure etc (Scotland) Bill and the other is a bill on title conditions, which is yet to come? Professor Rennie advised us that it would have been more beneficial for the committee to consider the two bills together. Perhaps some of the concerns of Shelter and other organisations will be addressed when we consider the second bill.

I do not envy the committee's task in considering real burdens reform, tenement law reform—another aspect of this subject—and a complicated set of proposals. It has not been the easiest process with which to engage. That is in marked contrast to the consultation process on the land reform white paper, which I know the committee will be considering later. There has been a thorough engagement with that matter.

I do not want to suggest that everything that the committee is considering is wrong—the bill is thorough and much research has gone into it. However, some areas need to be considered more thoroughly, and feudal burdens are an example of that.

That is one of the points which I wanted you to address in more detail. The concern expressed by members of the committee last week was that we were doing one part of a much larger jigsaw. The extent to which each of the subsequent pieces of legislation will impact on this one had not been fully appreciated by any of us. Considering the bill will be difficult. Without knowing what future legislation will contain, we cannot be certain that we are using our time effectively. We might be wasting time in being concerned about things that will be fixed. We are struggling with how to deal with that.

We have had a fairly detailed second submission from Land Reform Scotland as a result of the evidence that was heard at the committee meeting last week. Do you have any comments on that? I appreciate that it is not your evidence. You will know that we heard from Professor Rennie last week, and that he said that there is no public interest under the feudal system.

The issue that has been at the core of some of the submissions—including the one from Shelter—is that we should explicitly retain a reference to the public interest, in a way that is most appropriate. Professor Rennie was clearly of the view that that was an interesting idea, but that the feudal system itself was not about the public interest. Land Reform Scotland has indicated that other authorities counter Professor Rennie's opinion. Unfortunately, in its submission, it does not tell us who those other authorities are.

This question is probably best addressed to Andy Wightman. Are you aware of other authorities? I am a lawyer and, to me, other authorities means something specific. Land Reform Scotland may be using a different context. Will Andy comment on what Land Reform Scotland is saying about Professor Rennie's opinion that there is no public interest under feudal tenure?

The professor's statement was a matter of opinion. As I hinted earlier, I have problems with the conveyancing profession.

Don't we all.

I have problems with the conveyancing profession commenting on matters that are much wider than conveyancing. That is not to criticise Professor Rennie's obvious professional competence in the area. I am not legally trained either, so I do not presume that I have any specialist knowledge on the topic. However, Robin Callander, who gave evidence to the committee last week, has spent the past four or five years doing detailed research into the nature of the public interest in land and has published a book on the topic. It sets out a number of arguments, which have not been countered by anybody in the legal profession, and which highlight that for decades—perhaps centuries—the system of land tenure has not been subject to scrutiny beyond a narrow class of those involved in conveyancing property within that system and covered by it. The debate about the nature of the public interest in land has been dead for a long time.

Within the convention, we have spoken about the possibility of getting a QC's opinion or a similar legal basis for the case. We feel that it is not an appropriate role for us in the process to get legal opinion on one side of the debate, or the other. What we are saying is that the public interest must be safeguarded. It does not appear that anybody from the Executive can tell us what is being abolished in terms of the Crown's role as paramount superior. It therefore seems to be illogical to be so enthusiastic about having it abolished.

It is worth emphasising that at this stage of the bill we are, as a committee, required to draft a report on its principles. That will go to the Parliament and will inform the stage 1 debate. The bill will come back to us for a lengthy and detailed line-by-line process, which is where specific amendments will be debated.

We are saying to all witnesses that, whatever you feel your remit might be at the moment, if it becomes necessary in your view to propose specific amendments, they can be introduced via sympathetic MSPs, whose name will have to be added in support of them. It is open to you for weeks, if not months, to consider the more specific issues. Our report must be on the principles. It has sometimes proven difficult to remember that, because members want to dive into a specific discussion about a potential amendment, which is not what we should be doing at this stage.

Do any members have further questions that they wish to ask of these witnesses at the moment?

No.

I thank the witnesses for coming. You are free to do what Land Reform Scotland has done and give us another written submission on the basis of the evidence so far. We are reading those submissions and absorbing the various points.

Thank you for coming; you will no doubt follow the issue with interest.

I have already indicated what will happen next week. We have rejigged the agenda and will have further discussions on the prisons issue as we have found space for that.

In the next few days, I hope that members will get a copy of the first draft report on the Adults with Incapacity (Scotland) Bill. The input of the Health and Community Care Committee is yet to come, but by next week members will have a draft report before them. We will work through that as well.

Meeting closed at 12:35.