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

– in the Scottish Parliament at 2:30 pm on 15th December 1999.

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Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

On a point of order. The convener of the Rural Affairs Committee has written to the Minister for Rural Affairs asking that a statement on the latest position on the ban on the export of beef be made before the Christmas recess. Has there been a request to make such a statement?

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

No, but I can say that at the Parliamentary Bureau meeting yesterday the Executive stated that it would be happy to make a statement when there is any development. The Minister for Rural Affairs is in Brussels today and, I understand, will be here tomorrow. No doubt he will consider the committee's letter but it is a matter for him, not me.

Photo of John Swinney John Swinney Scottish National Party

On a point of order. Last week at question time, I raised the issue of the Cubie report on student finance, the fact that Parliament had decided to establish the inquiry and that it was due to report to Parliament. Tomorrow, Parliament meets for the last time before Christmas and the report is to be published on 21 December. Has the Executive said to you when we will have an opportunity to debate the report or have a statement on it? I notice in this morning's business bulletin that in the provisional business for the first week after the recess there is no mention of the subject in the Government's programme.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

That was also discussed at the bureau meeting yesterday. The problem is that none of us has seen the Cubie report; we do not know what is in it or what the Executive reaction to it will be. For that reason it is impossible to give advance notice of a debate or statement, but common sense dictates that we will have to discuss the matter soon after we return. The bureau will consider it again at its first meeting.

We will now proceed to motion S1M-214, in the name of Jim Wallace, seeking the Parliament's agreement to the general principles of the Abolition of Feudal Tenure etc (Scotland) Bill.

Photo of Jim Wallace Jim Wallace Liberal Democrat 2:37 pm, 15th December 1999

It is a genuine privilege to speak to the motion to approve the general principles of the Abolition of Feudal Tenure etc (Scotland) Bill. This is a truly historic piece of legislation that will bring to an end 800 years of feudalism in Scotland. It will benefit the vast majority of people who think of themselves as owner-occupiers in Scotland but whose homes are in reality held subject to the rights of one or more feudal superiors.

This is the kind of detailed law reform that would have been delayed for years waiting for a legislative slot at Westminster, but is ideally suited for consideration by this Parliament. I am therefore delighted that it is one of the first major pieces of legislation to be discussed by MSPs.

I would like to express the Executive's thanks to the various committees of Parliament that have played a part in the progress of the bill to date. The Finance Committee carefully scrutinised the bill, fulfilling its important duty. The Subordinate Legislation Committee played its role in examining the provisions for subordinate legislation. It is a tribute to that committee's care in that task that the Executive has accepted two of the points it made; we will introduce amendments to that effect during stage 2.

We all know of the very heavy load that the Justice and Home Affairs Committee has been labouring under. Only last week we considered another bill on which it has produced a report. Despite that, the committee has produced a most thorough and thoughtful stage 1 report on this bill. I congratulate the convener and the members of the committee on their excellent work. Subject to the approval of members, I look forward to working with them when we move on to detailed consideration of the bill at stage 2.

The Justice and Home Affairs Committee asked me for clarification on a specific point. In our policy memorandum, we said that the bill would have no effect on sustainable development. I understand that the committee received representations to the effect that a bill that affects land ownership must inevitably have some effect on sustainable development. The committee suggested that the Executive might be using a definition of sustainable development that is different from that used by those from whom it heard evidence.

There are a number of definitions of sustainable development. Perhaps the best way I can put it is that sustainable development is about economic growth, social development and environmental protection. I can certainly see that the ownership of land might have some impact on all of those matters, but the reform of the feudal system will not change who owns the land, nor can it be expected to alter the pattern of land ownership. It is a technical and legal matter that affects the way in which people own their property.

I should like to take this opportunity to pay tribute to the work of the Scottish Law Commission and to its document, "Report on Abolition of the Feudal System", which forms the basis of this bill. The commission deserves our thanks for its care and diligence in formulating its proposals. As the committees that have studied the feudal system will readily appreciate—and will, no doubt, appreciate more as we go through stage 2 of the bill—this is a complex subject. The commission had to take the views of a wide range of often conflicting interests as well as assess the state of statutory and common law running back to medieval times.

The commission's main recommendation was that the feudal system should be abolished and replaced by a system of simple ownership of land. The bill would implement that simple recommendation, which I personally commend to members, as such a system already exists in relation to certain allodial land in Scotland. Udal land in Orkney and Shetland is held outright, with no feudal superiors. It gives me particular pleasure to introduce a bill that extends to the rest of Scotland the freedoms that my constituents have enjoyed for centuries.

The bill is divided into seven parts. Part 1 contains the major provisions abolishing the feudal system. Section 1 has a huge resonance:

"The feudal system of land tenure, that is to say the entire system whereby land is held by a vassal on perpetual tenure from a superior is, on the appointed day, abolished."

Scotland has waited an awful long time to hear that sentence.

Feudal tenure is, of course, the technical and legal way in which many of us own our property. The documents that prove that we own our houses are often feudal deeds. They have to be registered so that there is a public record of who owns what and of exactly what they own and what the limits of their ownership are. Part 2 relates to the transfer of ownership and registration of deeds, and is not intended to change the substance of the law. It makes provision to continue the law in a post-feudal context.

Perhaps the best known aspect of the feudal system is the feuduty. Most members probably recall the annual payment of small and rather peculiar sums of money each year to our feudal superiors. The majority of them have disappeared because, from 1974, the feuduty has been redeemed on the sale of most property. However, some properties have not changed hands during the past 25 years and the owner has not voluntarily redeemed the feuduty.

Part 3 would abolish all remaining feuduties. It also provides that if the superior claims compensation for their extinction, it will be paid by the vassal on the same basis as the redemption of feuduty under the Land Tenure Reform (Scotland) Act 1974. The Scottish Law Commission estimates that only 10 per cent of feuduties are left and we suspect that most of those will be apportionments of larger feuduties that have been informally imposed on tenement flats and did not have to be redeemed on sale. The feuduties involved will be small: perhaps £2 to £5 per flat. When the compensation exceeds £100, the bill provides for payment by instalments. The Justice and Home Affairs Committee referred in its report to possible amendments to the compensation provisions, which we will be happy to consider during the stage 2 debates.

Part 4 deals with real burdens, which is one of the most perplexing features of the feudal system. While real burdens can be oppressive, they can also be beneficial and helpful. I will return later to the issue of real burdens, because it is an important and, I accept, somewhat complicated matter.

The next two parts of the bill deal with a variety of subjects. Part 5 covers the subject of entails, which are to be abolished. Part 6 is a miscellaneous part, which deals with a number of matters, including various archaic methods of holding land and the extinction of other payments that are akin to feuduty. I may confess to a certain sadness in abolishing the charming concept of the kindly tenancies of Lochmaben but, along with other anachronisms, they will have to go.

We are also taking the opportunity in this part of the bill of abolishing any remaining feudal privileges attaching to a baronial title. I draw the Parliament's attention to section 51 which, by abolishing rights of irritancy, removes the right of superiors, in certain circumstances, to evict vassals who are in breach of feudal conditions.

Part 7 deals with technical matters such as the appointed day on which the feudal system will finally be abolished. I will return later to the matter of the appointed day, which has given rise to some interest in the Justice and Home Affairs Committee. As well as prescribing several forms that are to be used in the various processes of registration, the schedules repeal many obsolete acts or parts of acts. The bill plays an important role in modernising and cleansing property law.

It might be helpful to give a short explanation of the way in which the feudal system has operated in Scotland and the way in which it operates at present, as there are widespread misconceptions concerning what it means. The feudal system is nothing to do with leasing, and the feudal superior should not be confused with a landlord. A person who owns land under a feudal disposition owns it in law. However, he or she does so as the vassal of a feudal superior who retains an interest in the land in the form of a right to feuduty and a right to enforce conditions on its use.

With the phasing out of feuduties, the main use of the feudal system is to allow the imposition and enforcement of conditions on property, which are otherwise known as feudal real burdens. A vassal who wants to breach a burden will normally have to obtain the superior's consent. Often, the superior will grant consent only in exchange for payment. A typical modern example of that might be when the vassal wants to build a greenhouse or a garage. Real burdens can give superiors the opportunity to charge fees for waivers. The superior can say, "Yes, you can build your garage, but only if you pay me a fee." Some speculators have acquired superiority interests with the specific intention of deriving an income from waivers. That practice has been strongly criticised.

However, there are two sides to real burdens. Real burdens are often used to ensure that property is kept in good repair, to prevent nuisance and to safeguard the rights of neighbours. The Scottish Law Commission has therefore given careful thought to which burdens should be abolished and which should be retained. It has also thought carefully about the arrangements that will need to be made to retain burdens, which is a matter to which I shall return. The commission has recommended that it should be possible to retain four types of burden. I do not want to say much in detail about those, as they are set out in detail in our policy memorandum.

Broadly, the four types are as follows. First, maritime burdens are burdens that relate to important facilities such as piers and harbours. They will be saved by the bill. Secondly, common facility burdens are burdens that, as the name suggests, relate to a common facility on one property which benefits another property or set of properties. They might be concerned with a private access road or the common passages in a block of flats. Such burdens will also be saved, but the superior will lose the right to enforce them; they will pass to the properties that benefit from the burden.

Thirdly, conservation burdens exist where a burden preserves for the benefit of the public the architectural, historical or other special characteristics of land or buildings. An example would be an historic building that is restored by a conservation trust and feu'd subject to burdens that are designed to preserve the restoration work.

Finally, there is the neighbour burden. Under section 17, superiors may retain the right to enforce certain burdens on neighbouring land. The most common example of that will occur when the superior owns neighbouring land that contains a building of human habitation or resort within 100 m of the land that is affected by the burden. The bill would, for example, allow the superior to continue to preserve a view from his home. The commission recognised that the 100 m rule was arbitrary but considered that the line had to be drawn somewhere.

In reaching policy decisions on the bill, we were concerned that the provisions for saving neighbour burdens did not go far enough. For example, the superior may own land but not yet have built on it. He or she may be planning to build a retirement home and might want to preserve the open aspect of the site. The Executive has therefore decided to give the superior an opportunity to reach agreement with the vassal on which burdens can be saved. As a last resort, the superior can take the matter to the Lands Tribunal for Scotland. The superior will, however, have to satisfy the tribunal that his property would suffer substantial loss or disadvantage if the burden was lost.

There is a fifth category that I want to mention. Although the bill does not propose that they be saved, it provides a compensation package for the loss of development value real burdens—burdens that have been deliberately used to reserve development value for the superior where land has been sold at a discount.

When the bill was referred to the Justice and Home Affairs Committee, I made it clear that there would be scope for reviewing whether those would be the only categories of burden that should be retained. We have received some representations from commercial interests that the bill may not do enough to protect the interests of commercial developers. It is clearly important that we get that aspect of our proposals right; we all want to ensure that nothing is done to discourage commercial investors from investing in Scotland.

The commission has received representations from commercial interests in connection with its current review of real burdens. It is right that I should emphasise at this stage that we will continue to monitor carefully whether what the bill proposes in this matter covers adequately all the burdens that need to be saved.

Another issue that will be familiar to members and the Justice and Home Affairs Committee—it has been raised by those interested in commercial transactions—is the proposed limit of 125 years on long leases. I want to assure the Parliament that we do not have a closed mind on that figure or, generally, on the detailed numbers and quantities that are prescribed in the bill. We fully expect those figures and any suggested alternatives to be properly and fully debated in committee at stage 2.

I turn now to the associated subject of the future of real burdens after the feudal system is abolished and to the package of property reforms that we will present to the Parliament over the next few years. It is important to take some time over that, because the Justice and Home Affairs Committee sought clarification on, and referred to, it in its stage 1 report.

When I announced in June that we would introduce this bill, I explained that it would be very closely related to the report on real burdens that the Law Commission is preparing. I said that part of the feudal bill would be commenced at the same time as the bill on real burdens. The Justice and Home Affairs Committee has—with some justification—said that it had some difficulty dealing with one part of the package when it could not see the rest. However, there are good reasons for dealing with the matter in this way.

Not all burdens in Scotland are imposed through feudal deeds; many are set out in ordinary, non-feudal deeds of conditions and dispositions. Those burdens will not be affected by the Abolition of Feudal Tenure etc (Scotland) Bill. During its consideration of feudal real burdens, the Scottish Law Commission readily recognised that the general law of real burdens and conditions on property also required modernisation and simplification. It carried out work on the subject and issued a discussion paper in October 1998.

The Executive is committed to introducing a second bill to implement the recommendations in that report. The subject has two corresponding halves. The Abolition of Feudal Tenure etc (Scotland) Bill will abolish many feudal burdens but allow some to be saved and converted into ordinary real burdens. The title conditions bill—as it is to be known—will then introduce a new and modern system for all burdens or conditions on land. Taken together, the two bills will effect a radical reform of this area of Scots law. Obviously, it would have been easier for us all if we could have seen both bills together, but there are reasons why we did not want to hold up the Abolition of Feudal Tenure etc (Scotland) Bill.

I said that I would say more about the date of abolition of the feudal system. As I have explained, superiors will be given the opportunity to register notices if they wish to preserve certain burdens. They will also be given the opportunity to register notices if they wish to claim compensation for feuduty and the loss of development value burdens. If they wish to claim compensation for feuduty, they will have to prepare notices to be served. That will, inevitably, take time.

Superiors will have to identify the cases in which they want to preserve burdens or claim compensation. They will then have to go through the mechanics of registration. The length of the transitional period is a matter of some concern. The commission recommended no less than two years. We took the view that if we were to wait for the publication of the title conditions bill, we would postpone the date on which the transitional period could start and, therefore, the date on which the feudal system would finally be abolished. That is why we have proceeded now with the Abolition of Feudal Tenure etc (Scotland) Bill.

Considering one bill in advance of a sight of the other might not be ideal, but it is possible that the title conditions bill will have to amend the Abolition of Feudal Tenure etc (Scotland) Bill. There may need to be further consideration of how the two bills are linked, and the commencement dates may need to be re-examined. I assure Parliament that we will not commence any aspect of the Abolition of Feudal Tenure etc (Scotland) Bill until we are certain that the time is right to do so. As we proceed through stage 2, we will keep the committee in touch with Law Commission developments.

The Executive is aware that the bill requires some further amendment during its passage, but much of that will be largely technical—I do not think members will wish to be troubled with that at this stage.

For the purposes of rule 9.11 of standing orders, I advise the Parliament that Her Majesty and His Royal Highness the Prince of Wales as Prince and Steward of Scotland, have been informed of the purport of the Abolition of Feudal Tenure etc (Scotland) Bill, and have consented to place their prerogatives and interests, so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.

I know that these matters have sounded very technical. They are technical, but at the heart of them is a very simple proposition: after centuries, we are moving towards the abolition of the feudal system. Today's debate marks an important milestone on that journey.

I move,

That the Parliament agrees to the general principles of the Abolition of Feudal Tenure etc. (Scotland) Bill.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

During the open debate, there will be the usual four-minute time limit. It was reported to me during the lunch break that while the two deputies were in the chair two members not only exceeded their time but did not wind up and sit down when they were asked to do so. In fairness to other members, we cannot allow such behaviour. Therefore we are opening a black book. Those whose names are entered in the black book will find that next time they press their button their names will mysteriously appear at the bottom of the list. I hope that that will encourage fairness in the chamber.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 2:57 pm, 15th December 1999

It is with a distinct sense of déjà vu that I stand here. Some of my comments today will be similar to those that I made last week. The bill was the second major piece of legislation that the Justice and Home Affairs Committee was required to deal with in a limited period.

Once again, I record my appreciation of the work of members of the committee, only a handful of whom came from the legal background that might have made them more comfortable dealing with the issues that the bill raises. Indeed, those of us with a legal background were not much better off. There were times when I felt as if I were back in first-year conveyancing lectures—an experience that I had hoped to have long left behind me.

Nevertheless, the committee members took on the responsibility of becoming informed. I hope that the report exemplifies that work that they all put in. Needless to say, my thanks must also go again to the clerks who shared the burden with us. We were required to produce two substantial reports in only a few weeks, and without the clerks, that would have been well-nigh impossible.

This bill is not as controversial as the Adults with Incapacity (Scotland) Bill, but that does not mean that the committee could deal with it less seriously. There were many issues of detail that required to be examined, which included points on which the Executive had not made up its mind.

Issues concerning the effect of the time scale that was set for us are outlined in paragraphs 10 to 11 and 18 to 20 of the report. I do not propose to reiterate them, but the concerns that I expressed last week in the debate on adults with incapacity apply with the same force here.

The committee comments on the interaction between this bill and other bills that are planned by the Executive, which could all be thought of as parts of a whole. We found it difficult to report on the principles of the Abolition of Feudal Tenure etc (Scotland) Bill alone, when it became clear during our proceedings that those principles could not stand apart from those of the title conditions bill and the law of the tenement bill. In a sense, this is not a stand-alone bill, but we were obliged to behave as if it were. That created some difficulty for us and led to a degree of cynicism about the real, as opposed to the stated, reason for delaying the implementation of the bill.

Members who have read the committee's report will know that it highlights one big issue of principle on which there was controversy, and a number of other points of detail on which there was contradictory evidence.

The committee has made it clear that the bill is to be welcomed. We all agreed that sweeping away the anachronism of the feudal system was long overdue. It was difficult to see how else it could be brought about other than by outright abolition.

It became clear, however, that although we were sweeping away one form of land ownership in Scotland, some organisations and commentators felt that a serious gap now existed. Evidence was submitted to us that there should continue to be a public interest in the new form of ownership. That submission was made on the basis of the argument that the Crown, apart from its position as paramount feudal superior, had been the guardian of the public interest until now.

It is fair to say that, although many committee members had sympathy with the public interest argument, there was a degree of scepticism about accepting that the Crown had traditionally fulfilled that role. Even those who do not hold quite such robust views about the Crown's future role in our constitution as I do were nevertheless unsure whether that argument was valid. However, in the absence of any outright hostility to the bill, that was the major point of principle that we had to address. I hope that the way in which we have covered that point in paragraphs 12 to 17 of our report makes that argument clear, even to those coming new to the debate.

At lunchtime, I saw for the first time a counsel's opinion on the generality of the argument. The document, which has today's date, is a brief preliminary outline opinion on the issue of paramount superiority. Had the committee had that information, it might have helped us to deal with the issue. The opinion is the work of Sir Crispin Agnew of Lochnaw QC. He states categorically:

"In Scotland the legal theory of landownership has been that the Crown owns all land for the benefit of the community of the realm and that the Crown grants out rights in that land to subjects, who hold that land under the Crown's paramount superiority or dominium eminens."

He goes on to say that the first bill proposed by the Scottish Law Commission had a section saying that

"the abolition of the feudal system of land tenure shall be without prejudice to any other rights, privileges, benefits of or derived from the Crown by virtue of the paramount superiority".

He says that the present bill contains no such reservation and that, in his opinion,

"the draft Clauses would appear to have the effect of severing all connection between the land and any other rights, privileges, benefits of or derived from the paramount superiority."

I will not read the whole opinion. I have not had a chance to read it in detail myself, but those parts caught my eye. The opinion would have been useful to the committee and might have encouraged us to couch some paragraphs of our report in a slightly different way. That is a caveat for those reading our report, and I shall circulate copies of the opinion to members as soon as possible.

Photo of Robert Brown Robert Brown Liberal Democrat

Will Roseanna Cunningham tell us where that counsel's opinion came from?

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The instruction was by Scottish Environment LINK.

Other points of detail emerged that were more or less undecided—I was going to say controversial, but that would be the wrong word to use. Those included the question of payment of arrears of feuduty, the long lead time before the abolition of the feudal system, payment of compensation for the extinction of feuduty, and the limit on the length of commercial leases. Some of those points will no doubt be dealt with in more detail by other speakers this afternoon.

I shall now speak in my other persona as the shadow Minister for Justice, and echo the remarks that I made last week. I said then that the abolition of feudal tenure was a key commitment of the Scottish National party's land reform policy in the run-up to the elections in May. It is a testament to the widely expressed need for such reform that three of the four major parties in the chamber were committed to a similar bill. That allows us to proceed with broad support.

The bill is integral to any process of land reform and would always have been the first piece of legislation in any package of reform. It should be carefully considered in preparing the groundwork for future measures.

In that spirit, the SNP shares some of the concerns about the total omission of any reference to the public interest in the bill. Effectively, the bill introduces a form of absolute ownership, with which many people might have problems. It runs counter to the belief that the people of Scotland have ultimate ownership of the land. That principle would give us the ability to run public interest arguments as and when necessary. Andy Wightman, who has a long track record and a great deal of credibility in that policy area, expressed his concern that, without some recognition of the public interest, we might find ourselves bound more tightly in the future, in what we can and cannot do, despite there being a demonstrable social or environmental need.

Scotland should not become a series of parcels of land in the absolute ownership of individuals, organisations, offshore trusts and charities. The public interest should be explicitly enshrined somewhere as a principle, so that in future, recourse can be had to that principle in the courts if need be. Whether the Crown's ultimate superiority did protect the public interest in the past, the fact is that landed interests believed that to be the case, at least in regard to planning law. Without that belief, the resistance to interference in their ownership would have been greater.

By omitting to include a public interest provision in the current proposals for land reform, do we not run the danger that in future such resistance will not only be greater, but might be successful? I ask the minister to comment on the fears that the lack of a legally defined public interest provision might have an impact on future planning controls or compulsory purchases which, by their nature, are based on public interest. Frankly, the matter can easily be dealt with by the inclusion of a res publica clause, which would acknowledge the public interest through the recognition of the ultimate ownership of Scottish land by the people of Scotland. I refer back to some of the comments in counsel's opinion in respect of the Scottish Law Commission's draft section in its original bill.

This argument may sound academic, but I remind members of the heated debate over the extent to which the multilateral agreement on investment would cause difficulty in otherwise domestic decision-making processes. In addition, the World Trade Organisation talks in Seattle similarly reminded us of the need to ensure that our legal concepts are clear cut.

I will now refer to other matters. The minister will be aware that a number of parliamentary questions have been lodged in my name, which seek more detailed information on who, and how many, will have to pay compensation and backdated feuduties under the legislation. The questions also attempt to establish who will benefit from the compensation. We are concerned that the legislation will leave the way open for clever operators to exploit aspects of feudality that have lapsed, the financial potential of which has escaped their owners and the general population. Anyone who has had to deal with the fall-out from Brian Hamilton's activities will be well aware of the distress that can be caused. It would be unfortunate if we opened the door to individuals to act for groups of clients who have neglected, forgotten or are ignorant of their rights. The last thing that we need is a raider of the lost feus appearing on the scene.

As a result, we wonder whether it would be more appropriate to cap the compensation that is payable. Equally, we should stipulate that payments will not be made unless there is proof that the income from the vassal has been a significant portion of the superior's income. Those changes would target people such as the Duke of Buccleuch, or large corporations, who would be able to claim compensation only if they gave a full statement of their income, and proved that the loss of feu income would cause them financial hardship. At the same time, the measures would protect groups such as the Church of Scotland which, as I understand it, relies heavily on feu income. They would keep out those who have not claimed feuduties in recent years, but who plan to use the legislation to catch up on payments.

Indeed, I would go further. Compensation could be made dependent on the provision of information, which brings me to the third area that I wish to address, a land information system. Tying the payment of compensation to registering land interests in Scotland would provide additional information for public consumption. That information could be extended if we used the opportunity afforded by the bill to review the availability of information relating to ownership of, use of, development of and access to land in Scotland. Eventually, we could have a fully comprehensive land information system for Scotland. Before anyone asks where the money will come from, I suggest that the compensation payments owed to Government departments be paid directly into the Scottish consolidated fund as a contribution to land development projects such as the land information system.

As I said at the outset, the bill is broadly similar to that which the SNP would have wanted in its land reform package. However, there are ways in which it could be made even better and, indeed, in which it could be—even more—part of the Executive's overall reform.

I know that the Executive has left some matters open to further consultation and debate, and has not closed its ears to other changes. We are grateful for the Executive's input at various points during the committee's taking of evidence and we note that the Executive has responded positively to some of the concerns of the Subordinate Legislation Committee. I hope, therefore, that the Executive will be able to respond as positively to some of the proposals that I have raised today and, for that reason, I look forward to hearing the minister's closing speech.

Photo of Phil Gallie Phil Gallie Conservative 3:11 pm, 15th December 1999

There is a welcome throughout the chamber for the bill, which seeks to sweep away an archaic and largely symbolic form of land tenure and replace it with a more modern and practical system. Having said that, I believe that the system has served us well over many years; it has brought controls and assisted in the development of our country in a way that has brought great benefit. However, it has served its purpose and it is time for it to go.

Roseanna Cunningham mentioned the link between the Abolition of Feudal Tenure etc (Scotland) Bill and the land reform bill. While I expect that there will be consensus on the bill today, I suspect that that consensus will not extend—in full, at least—to the land reform bill that she envisages.

The Abolition of Feudal Tenure etc (Scotland) Bill represents a long-awaited change. Its history could be said to have started with the Land Tenure Reform (Scotland) Act 1974. In 1991, under the Tories, a discussion paper on abolition of the feudal system was issued. In February this year, the Law Commission presented to Parliament a report on the abolition of the feudal system; the bill under discussion today is substantially the same as that contained in the Law Commission report. Some people might say that the bill is long overdue, but as I said, it is welcomed all round.

However, the Parliament must take care when discussing the bill. We must ensure that the proposed reforms represent a real improvement on the present system and do not create greater problems of their own. The bill will transform the system of land tenure and will have a significant impact on business, conservation and conveyancing practice in Scotland. I quote from the Law Commission report:

"The feudal system of land tenure . . . has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money."

Abuses of the system happen. For example, in Prestwick, some residents received requests for payment of a significant sum to ensure blanket waivers for title deviations made over the years, prior even to the present occupants living in their homes. Wisely, the great majority of those residents ignored the requests; one or two, unfortunately, made the payments. That bad aspect of the system will disappear; under the new bill, there will be no means of enforcing such payments.

It is ironic that local authorities are among those who exploit the existing burdens laws. I understand that Labour-controlled City of Edinburgh Council charges £50 for window consents and £200 for porches, while SNP-controlled Angus Council demands £60 for waivers. We should all take note of that.

Comments were made about outstanding feu payments. Happily, outstanding feu payments have almost been cleared. It is interesting to note that the Royal Institution of Chartered Surveyors suggested that the formula that was set up in the 1970s was, perhaps, too generous for present times. The minister might want to examine that when he addresses those issues later.

There will be introduction of feudal reform today and reform of title conditions and tenement law tomorrow. Following the publication of the bill, the Justice and Home Affairs Committee carried out its allotted task of pre-legislative scrutiny of the bill. That included hearing oral evidence from a fair number of people during several committee meetings. The committee's scrutiny also attracted a considerable number of written submissions. The value of the scrutiny procedure struck home when it became apparent to committee members that the bill was not a stand-alone bill.

The Scottish Executive—on its second visit to the committee—acknowledged that there would be a title conditions bill and a law of the tenement bill. It appears that the former might play a part in setting the appointed day for enactment of the bill that we are debating today—one reason for leaving the bill open-ended. I noted the references that the Minister for Justice made to that in his comments.

Perhaps a lesson that can be learned is that in future there should be more openness or clarity about the Executive's intentions when it presents such bills. The benefits of the present committee system have not been demonstrated.

A number of representations have been made that seek the retention of the ultimate superiority of the Crown in a reformed feudal system. From a practical point of view, the Justice and Home Affairs Committee remains unconvinced of the merits of the arguments for that. There seems to be little point in extinguishing the powers of numerous mid-superiors only to retain nominal Crown superiority, especially as rights relating to the Crown prerogative—mineral rights, fishing rights and so on—are to be retained by the Crown in any event.

When he addressed the Justice and Home Affairs Committee, Professor Robert Rennie commented:

"The Crown, as paramount superior, does not own the land for the people; the Crown owns it for the Crown."—[Official Report, Justice and Home Affairs Committee, 9 November 1999; c 367.]

Professor Rennie also made clear his view that the Crown does not have rights over vassals and superiors and that any involvement in future in burdens of any kind would have to be legislated for.

I note Roseanna Cunningham's comments about the submission that was brought to her attention today. We must, perhaps, accept that the submission has come rather late for the Justice and Home Affairs Committee, but we are only at stage 1 of the bill. We are moving towards analysis of it and there will be time to take on board such submissions. Perhaps the discussions that we had in the committee have induced those who want to seek legal opinions to do so. That will be to everybody's benefit in the long term. The objective of Parliament must be to ensure that we get land reform legislation right. It is a complicated issue; Roseanna Cunningham mentioned that many of the committee members do not have the legal background that she and a couple of colleagues on the committee have. If the issue confuses them, how do the rest of us who are members of that committee feel?

It seemed to me that the removal of burdens might make the transfer of houses easier for purchasers and for sellers. Disappointingly, Professor Rennie suggested that there would not, at the end of the day, be any reduction in conveyancing fees. The worst news was when he looked forward to future bills, which were mentioned earlier. He did not say that there would not be added charges for investigations into the implications of those bills.

There was some concern on the Justice and Home Affairs Committee about commercial leases. At present, residential leases are limited to a maximum of 20 years, by the Land Tenure Reform (Scotland) Act 1974. The new bill does not affect that. However, there is no limit at present on the length of commercial leases. The bill proposes to limit the length of new commercial leases to 125 years. The minister suggested that he would be prepared to consider that area. Perhaps the figure of 125 years has been plucked out of the sky to create a debating point.

In view of commercial interests and the way in which we want our economy to develop, perhaps we should widen the commercial lease. In so doing, we must consider legislation that has passed through Parliament more recently. Environmental legislation often entails the clearing up of land after use for various processes by manufacturers. That could be a consideration when companies are considering taking land on board under lease terms, if it was felt that the processes that they wanted to carry out could not meet environmental requirements at the end of the period.

I welcome the fact that there will be the opportunity for neighbours and others to retain an interest in feudal burdens, which has helped neighbourhoods to develop in a consensual way over a period of time. It is important that neighbours should have a say in the developments that go on around them. However, there can be conflicting interests.

One example is of someone, in Corstorphine, who wants to split up a large flat into a number of other residencies. Three of the neighbours accept that, but one does not. That one neighbour has become the feu superior and has put a block on the development. The 100 m rule probably means that that individual can continue that block once the bill is enacted. I want an assurance that such an issue would be passed on to the Lands Tribunal and fair decisions taken on that basis.

In another situation, a farmer sold a plot of land and specifically determined that there should be no dogs in the development alongside, for the protection of his animals. He feels that the 100 m rule in the bill will remove his say and could cause his business difficulties.

My time is running out, so I will finish by saying that many points in the bill can be queried. I believe that the Justice and Home Affairs Committee will need a considerable amount of time to examine the bill line by line. That will be in the interests of the bill, and I would like to think that the Executive will not make the committee meet false deadlines.

Photo of Pauline McNeill Pauline McNeill Labour 3:24 pm, 15th December 1999

It is almost beyond belief that in this day and age we still have laws that refer to vassals and superiors. Throughout the years we have had some attempts at reform, but never the determination or opportunity to abolish the system once and for all.

I have received some letters on the subject of feudal tenure and I have read some critical reports about how the reforms are weak or flawed. We should get one thing straight before we begin. This is not a reform, as Jim Wallace said earlier; this is about abolition—hence the title of the bill. Of course, we will retain one or two useful characteristics of the old system, but the fundamental aspects of the forthcoming bill will do away with feudal law for ever. The abolition of feudalism will pave the way for further legislation to modernise land ownership in Scotland. We will find ways to ensure that it is done in the interests of all Scots, not just an elite minority of wealthy landowners.

We do not have to abolish feudalism because it is old law but because it places burdens and restrictions on all those who think that they have outright ownership of their land but find that there is someone lurking in the background who has the ultimate say on aspects of development, with a personal right to receive payments in order to give consent to regional development.

Many ordinary people have bought their homes thinking that they had single ownership of their house and the land that it stands on, yet find—perhaps many years later when they decide to build an extension—that they need the permission of another person to alter their house and that that person can charge thousands of pounds, in some cases, for that permission. Brian Hamilton, the most notorious feudal superior, has used his superiority rights to exploit the system to make a profit, ruining many lives in the process.

Photo of David McLetchie David McLetchie Conservative

Following her remarks about exploitative superiors, will the member condemn the actions of those Labour councils that exploit citizens by demanding payments for superiors' consent?

Photo of Pauline McNeill Pauline McNeill Labour

No, I will not. It is not right for people to be unaware that feudal superiors might be lurking in the background. We will abolish that sort of secrecy when the bill becomes an act.

There are 75 sections and 11 schedules to deal with when considering the bill, which relates to a complex area of Scots law. We have heard that the bill is much the same as the draft provided by the Scottish Law Commission and only departs from it in a few ways. One such way is on the matter of neighbour burdens: someone selling land will be allowed to retain some control over that land, to prevent the loss of an amenity. The principle is an important one and should be examined further in committee. We should try to determine whether the 100 m rule is practical. The Executive has stated that it has an open mind on the matter.

A controversial area has been the Crown's conceptual role as the ultimate feudal superior. Land Reform Scotland told the Justice and Home Affairs Committee that section 56 of the bill, which deals with the prerogative powers of the Crown, is ambiguous and should specify that the Crown's rights will be abolished only when they are shared with other superiors.

Roseanna Cunningham and Phil Gallie have told the chamber that the Justice and Home Affairs Committee listened to the groups that told us that the Crown should be retained as paramount superior in order to retain some public interest in land. However, having listened to those groups, we still believe that that is not the way to retain public interest in land. To quote Professor Rennie for the second time this afternoon:

"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."—[Official Report, Justice and Home Affairs Committee, 9 November 1999; c 366.]

The Crown acts in the public interest through public authorities, the planning system and the public law system, in relation to the regulation and the use of land.

I agree that we must find other ways to ensure that the public interest is well served. We have already begun to do that in other pieces of legislation dealing with access to land, the community right to buy and the Scottish outdoor access code. Interestingly, that is the area on which I have received most correspondence from those who do not want people from cities roaming around all over the countryside. I believe that we have a foundation on which we can build other pieces of legislation that will legitimately act in the public interest.

Members heard from Jim Wallace this afternoon that the appointed day will be two years after the royal assent, which is quite a long period. As he has stated, that is because there is other related legislation and because of the complexities of abolishing the feudal system. There are issues that need to be resolved in that time, not least relating to feudal redemption.

Members will have heard this afternoon that the Justice and Home Affairs Committee is concerned about the length of the period before the bill comes into force. There is still scope for considering this further, as there is an issue to do with Brian Hamilton and other superiors not capitalising on that two-year period, and making unjust calls on their rights to enforce feudal burdens. We have to further consider the detail of that.

It is important that the bill talks about feuduties and other types of duty. In the west of Scotland in particular, there are other duties, including grounds annual. They are small amounts of money, but none the less will be swept away by the abolition of feudalism. There are two aspects to feuduty: one concerns arrears and how they will be paid back, while the second concerns how compensation will be paid to the superior. We know from Scots law, and indeed from European law, that the issue of compensation to superiors for the loss of their rights is one that we are legally bound to address. We have to pay some attention to the detail of what we are doing here. The Executive has said that it will consider the issue of those who are due to pay less than £100 and whether the instalment period could be increased.

Although compensation only affects about 10 per cent of the population, the Parliament has to be mindful that if we are going to compensate superiors, and ask people to pay those duties, the duties should be fair and reasonable. People on low incomes, particularly the elderly, should not be disadvantaged by the payment of those duties, which may be heavy.

It has been said this afternoon that there are other matters that are separate but related to the feudal system and are confusing to the public. One of those is the concept of leasehold casualties. While it is not an issue for feudal tenure itself, it has caused a bit of concern. Over the past few months, we have heard that steps will be taken effectively to abolish leasehold casualties. Again, Mr Hamilton appears to be making a killing from this loophole in the law. He was awarded £94,000 by the courts and Grampian Regional Council, when the latter lost an appeal over a long-disused school and schoolhouse. He took over the leasehold interest, with the intention of collecting a long-neglected leasehold casualty payment. That is wrong and is an issue that has to be addressed.

There are many important land issues in the Parliament, not least the slow change from the old register of sasines to the new land register. We must build on the foundations that we are creating today, and in the months ahead, when we abolish the feudal system. We should ensure that land ownership in Scotland is transparent and clear-cut, and that ordinary people can go to the land register and find out who owns a piece of land and who has interests in it. I believe that by the year 2003 we will have made land ownership transparent.

Photo of Patricia Ferguson Patricia Ferguson Labour

Before moving to the open part of the debate, I remind members that if they wish to speak, they should indicate it by pressing the request-to-speak button. There will be a four-minute time limit on speeches this afternoon.

Photo of Christine Grahame Christine Grahame Scottish National Party 3:34 pm, 15th December 1999

I will deal with two areas: compensation and the issue of the Crown. I would like to address sections 7 to 12, particularly the issue of compensatory payment in instalments. Will the minister consider reducing the multiplier from 20 to 10? Representations have been made to us by the Royal Institution of Chartered Surveyors and Dundas and Wilson, a major commercial firm in Edinburgh, which felt that 10 would be a more appropriate multiplier. The knock-on effect of that might be that the 10-year period for instalment payments—we have had evidence suggesting that that might be too long—may be reduced.

I am pleased that the liability for payment falls on the vassal immediately before the appointed day and that the sum due is now not secured on the ground and that arrears will cease to be so secured. Feuduty is no longer an issue in examination of title for conveyancers.

Compensation for the extension of burdens in sections 32 to 38 is justifiable where real burdens may have been used to reserve development value. As ministers will be aware, property could have been feu'd for a heavily discounted consideration—perhaps for no consideration at all—on the basis that there would be a financial term for the discharge of the burden were it to be varied in whole or in part. That is proper as it would be unjust to have a windfall benefit to a former vassal.

I have some legal experience—not much—as a conveyancer and, as a member of the Justice and Home Affairs Committee, I felt my head fair birling again, just as it did in Professor Reid's constitutional law and conveyancing classes. The abolition of feudal tenure will affect the Crown just as it affects other superiors; land will cease to be held by the Crown. However, other Crown rights remain and it will continue to have residual title to property that is not otherwise owned, including heritable property.

Along with other members, I heard submissions regarding the role of Crown as representative of the public interest—expressed by some as res publica—and, like Roseanna Cunningham, I have extreme sympathy for the sovereignty of the people, which is at the base of our independence.

There are issues raised in Sir Crispin Agnew's submission that would have clarified the debate for the Justice and Home Affairs Committee. Sir Crispin refers to Professor McQueen, who wrote:

"in feudalism, landownership and sovereignty coincided, so that the Crown's sovereignty over Scotland and dominium eminens, its ultimate tenurial superiority, were the same thing, identical concepts."

He goes on to say that

"the sovereignty and the paramount superiority are inter-linked, so that the theory regarding to which right they pertained did not need to be determined in a feudal society."

As we are defeudalising, we must consider how we determine the role of the Crown. It is an important issue. Sir Crispin Agnew says:

"The extent of the Crown's ultimate rights as owner of all the land for the benefit of the community is far from clear in law, with the leading text book writers differing as to the extent or even the source of those rights; eg whether they derive from the paramount superiority or from sovereignty."

Those are issues that I and other members of the Justice and Home Affairs Committee would like to explore slowly, over strong coffee. Sir Crispin goes on to say:

"If absolute ownership to land is given by the proposed Act, then the legal basis on which that ownership can now be controlled may be lost."

There is a serious, constitutional legal issue at the heart of this, on which some of us may become experts in due course.

I am grateful to Professor Reid for his article—I say this to hearten Jim Wallace—in which he tells us that the bill repeals 45 acts, 246 sections and 57 schedules. As the minister said, it is goodbye to the kindly tenants of Lochmaben.

Photo of Robin Harper Robin Harper Green 3:39 pm, 15th December 1999

I make no apologies for pursuing points that have already been raised by Roseanna Cunningham and expanded on by Christine Grahame. I welcome the fact that those members have said that they would like to pursue the debate in the Justice and Home Affairs Committee.

Scotland needs feudal reform and I welcome it. However, I am concerned that the present principles of the bill appear to betray the public interest because of the impact on the role of the Scottish Crown. Our present system of land tenure in Scotland is based on the principle that all land is owned by the Crown and granted out to those that we call landowners. This is the dominium utile—have I pronounced that correctly, Christine?—which translates from the Latin as the use, rather than the possession, of the land.

Of fundamental importance to our present constitutional settlement, the Crown is the core constitutional repository of the public interest. We feel that the principle embodied in the Crown and its public interest role must in some way be conserved. This bill appears to undermine or forget the interest of communities in their own land, and replace it with a system of absolute ownership.

Land Reform Scotland has today written to all MSPs to express its concerns. The Scottish Land Reform Convention, which is the land reform civic forum representing unions, local government, churches and the voluntary sector, has also expressed concern. The convention's convener, Dr Alison Elliot, has said that we must make it clear that owning land carries with it unique responsibilities to other people in the future. It is not like owning a bicycle.

Scottish Environment LINK, which is the umbrella body for the Scottish environmental bodies such as World Wildlife Fund, Royal Society for the Protection of Birds, the National Trust for Scotland, among others, is also concerned.

I would like to quote Sir Crispin Agnew QC on the subject of the Scottish Law Commission:

"What the Commission do not appear to have considered is the crown's rights, not only in, but over all land, which derive from the paramount superiority and which can be exercised by the crown for the benefit of the community."

Sir Crispin has also said:

"If absolute ownership to land is given by the proposed Act, then the legal basis on which that ownership can now be controlled may be lost."

He was referring specifically—and I stress this point—to town and country planning and environmental regulation. I repeat—environmental regulation.

Sir Kenneth Jupp MC, the retired High Court judge and an internationally respected lawyer with an interest in land law, has said that the proposed legislation would be a retrograde step that would be very difficult to rectify.

In the face of such strongly argued and authoritative concern over this bill—concern that is coming from many sectors of Scottish civic society and beyond—will the minister reassure the chamber in the clearest terms, either today or in the future after taking advice from the Justice and Home Affairs Committee, that this bill is intended in principle to serve the public interest in the land of Scotland? Moreover, will he reassure the chamber that every effort will be made by the Executive during the ensuing stages of the bill to ensure that this public interest principle is contained in and made explicit in the provisions and terms of the bill?

Photo of Karen Gillon Karen Gillon Labour 3:43 pm, 15th December 1999

I am grateful for this opportunity both to listen to the contributions of my colleagues and to say a few words myself. Listening to some of the more complex matters surrounding this bill, and, in particular, listening to Jim Wallace and Roseanna Cunningham, has certainly helped to enlighten me, as a lay person.

I welcome the bill, and I thank the Justice and Home Affairs Committee for the work that it has done so far on behalf of the Parliament in relation to this matter. The whole debate about land reform and land tenure is obviously very complex, but it is also very emotive. For me it is about a choice between the old Scotland and the new.

It is about a Scotland that allows an unscrupulous landowner to squeeze as much cash as possible from tenants by archaic means or a Scotland that recognises the contribution that tenants make to an individual property and the area around it, and a Scotland that does not allow the insecure position of tenants to be used to the advantage of an often already wealthy landlord. It is about a Scotland that is ready to enter the new millennium free from the chains of oppression that have silently hung around the heads of far too many tenants in this country for far too long.

I am glad that this debate is about a Parliament that is ready and willing to provide the focus to tackle an important issue that has been dithered over for far too long. Tackling the issues that affect people's lives will provide this Parliament and Scotland with focus and direction, which the bill and other aspects of the Parliament's work are now delivering. I am proud that the Parliament is willing to address the issue in such a forward-thinking manner.

I am particularly interested in the issue of leasehold casualties, which, although not a feudal issue, has the potential to cause the affected tenants great financial hardship. There has been much mention of Brian Hamilton, who is the epitome of an unscrupulous landlord if ever there was one. The people of Clydesdale know only too well how they are affected by leasehold casualties and the feudal system. Some have lost their homes as a result; others have incurred considerable financial penalties. Although I acknowledge that the issue of leasehold casualties is complex and might not be dealt with best in this bill, I would welcome some assurance that the Executive will give some attention to the issue in future.

Photo of Jim Wallace Jim Wallace Liberal Democrat

As the Parliament knows, Mr Adam Ingram has indicated a willingness to bring forward a members' bill on the issue and the Executive is willing to co-operate with him on that bill.

Photo of Karen Gillon Karen Gillon Labour

I thank the minister for his reply, which will be of great interest to the people who have been affected in my constituency and throughout Scotland.

There is a frequent misconception that the issue of feudalism affects only people in rural Scotland and that urban Scotland does not care. From both my previous experience and my experience as a Clydesdale MSP, I know that this issue can affect both rural and urban Scotland, both wealthy and poor. Most people from both rural and urban areas are disgusted when they learn of the situation in which many tenants find themselves. Because of that, I warmly welcome the bill and look forward to Parliament passing it.

Photo of Tricia Marwick Tricia Marwick Scottish National Party 3:47 pm, 15th December 1999

I am particularly grateful to all the witnesses who gave their time to present evidence to the Justice and Home Affairs Committee. That evidence helped me to understand some of the bill's technicalities—or at least I thought that it had until today. The prospect of the minister's summing-up gives me a frisson of pleasure and I look forward to hearing what he has to say.

I agree with the Scottish Law Commission that the feudal system is

"an anachronism which needlessly complicates the law" and that

"abolition is an essential first step in any more general programme of land reform".

Terms such as "superiors" and "vassals" have no place in a modern system of land ownership.

However, I wish to raise some matters which I hope that the minister will address today and which the committee should consider carefully at the next stage of the bill. During evidence sessions, it became clear that no research had been done to find out just how many properties are still subject to feudal duties and how many people are affected. It is reasonable to assume that many occupants are elderly and are living on fixed incomes. I am concerned that superiors who have not bothered to collect in the past will now demand payment of arrears. I would welcome a statement from the minister that the issue will be investigated to ensure that elderly people in particular, who have not asked for this legislation, will not be placed under financial penalties that they simply cannot meet.

As the minister said, commercial companies have made many representations about section 65 of the bill, which prohibits a lease of more than 125 years. I share the Executive's concern that, without a statutory limit, such companies could introduce leasehold arrangements every bit as restrictive as the current feudal system. However, although I am mindful that we should not create disincentives to investment, I am not persuaded by the companies' argument that any such restrictive arrangements would be a consequence of a statutory limit of a 125-year lease.

Roseanna Cunningham and Christine Grahame touched on my final point about the need to retain some public interest in land. Some witnesses argued that the Crown's role as paramount superior creates a public interest. There have been real difficulties in considering this bill in isolation from other parts of the Executive's legislative programme. The minister may be able to give members some indication of where, if anywhere, the public interest will lie. Following the submission today, I have no doubt that the Justice and Home Affairs Committee will consider the matter in much greater detail.

The bill is long overdue—probably by a couple of hundred years. I agree with the general principle of the bill, but look forward to the minister's response to the points that I have raised.

Photo of Robert Brown Robert Brown Liberal Democrat 3:50 pm, 15th December 1999

I should perhaps declare an interest, in case it is relevant. I am an associate of Ross Harper & Murphy and a member of the Law Society of Scotland. There is bound to be something in all this lot that will cause them concern.

I suspect that the Abolition of Feudal Tenure etc (Scotland) Bill is not a subject on the tip of people's tongues in every pub in the land, but it is in a number of ways a momentous, interesting and significant bill.

First, it is a classic example of the need for this Parliament to be involved in the central issue of law reform. The bill came from the Scottish Law Commission. At Westminster it would probably have languished on a shelf. If and when it received parliamentary time, it would probably have had a grudging and peripheral passage into law. Here, the bill is a central part of the Scottish Executive's legislative programme and can be readily consulted on and properly scrutinised.

I do not quite understand the problem that the members of the Justice and Home Affairs Committee have had with the other forthcoming bills. The bill seems to be reasonably self-contained, although every bill has overlaps to others. Nothing was said in the debate that led me to understand the nature of the problem. I am not a member of the Justice and Home Affairs Committee, but I knew that a law of the tenement bill was in the offing.

Secondly, the bill is a testament to how the law evolves over time. At party conferences, we often hear demands for the abolition of this or the repeal of that. This bill, with its grand title, aims to abolish the feudal system, as the first clause says. However, the register of sasines—a feudal-sounding device—will continue. Prohibitions against glue factories and slaughterhouses may mutate from being feudal conditions into real burdens. The Crown's prerogative rights over the foreshore will also remain intact.

Notwithstanding Sir Crispin Agnew's views on the matter, public interest in land is a genuine issue. This may or may not be a real issue in today's debate, but the implications for the Human Rights Act 1998 are cause for concern. Compensation for the loss of land rights could be put right if we included a specific reference to the public interest in land in the bill. If nothing else, that would reflect the traditional Scottish view that there are a variety of interests in land, rather than absolute ownership, as has evolved in England over a number of years.

The bill is a link to the old Scots Parliament, which was abolished in 1707. Traditionally, nothing was more important than land ownership. Almost all the business of the old Parliament was to do with aspects of land ownership, such as title, possession and succession to land. The bill will amend or repeal no less than 10 acts of the pre-union Parliament, which is something of a record.

At the end of the day, the important thing is that the law is certain, reasonably comprehensible and achieves a fair and workable system between seller and purchaser and between neighbours, in the interests of the local community. Many of the conditions attached to titles are hugely important in maintaining building lines, keeping the character of a neighbourhood and regulating activities in properties in the public interest. Despite what a number of people have said, that is far more important in urban than in rural situations.

The important thing is for conditions to be good and workable, not whether they are feudal or non-feudal. We should not be led astray by the old-fashioned language. Where people have bought council houses, for example, there are huge problems with access rights in terraced houses whose titles were not drawn up as well as they might have been. The bill is symbolic and will be useful, but it is only part of a wider scheme of reform, which includes the forthcoming bill on the law of the tenement.

We should go ahead with the bill. Let us bring Scotland into the modern century, but without too much regard to the phraseology and rather more regard to the substance of what we are trying to do by bringing into being in Scotland a modern system of property law for the 21st century.

Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative 3:55 pm, 15th December 1999

At the risk of ending up in your little black book, Presiding Officer, you will forgive me if I race through this speech.

I thank the Scottish Executive for introducing the bill, but, having heard that the consideration of title conditions and the law of the tenement is ahead of us, I have to confess that it is like being given a jigsaw without seeing the picture or knowing the dimensions. Take, for example, the limitation in section 65 on long-term leases. The reference in that section to 125 years has been mentioned several times. Until very recently, the only thing that the figure 125 meant to me was a fast train. The figure can only be considered arbitrary, because it takes no account of individual circumstance or of a logical method for the determination of the period of tenure.

Why are we being asked today to scrutinise legislation that does not take into account the distinct differences between rural and urban lifestyles and the individual requirements that those respective communities have? The restriction on the right to impose a feudal burden on land sold for development to 100 m from an existing domestic property does not bear much scrutiny. Again, the figure has been determined arbitrarily.

In an urban area, 100 m might seem a reasonable distance. Within that distance, it may be in the clear interests of an existing property or, indeed, of the neighbourhood, to impose restrictions on the height, size or even colour of new developments in order to preserve the locale's identity. In a rural area, 100 m is not a long way when the nearest neighbour might be a mile or so from the doorstep. In such instances, it is important that existing landowners can impose a feudal burden on land sold for development to preserve their own and, more important, the countryside's identity. That would be in the interests of all Scotland.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Is preserving the countryside's identity not why we have local councils and planning committees?

Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative

Yes, but those same local councils have imposed burdens and have made money from the situation.

I will have to race through the next part of my speech. I do not want to be in the Presiding Officer's black book—it is a long time since I was in anybody's black book.

Preserving the countryside's identity would be in the interests of all Scotland; it would preserve our heritage and landscape, from which we derive so many economic benefits. Imagine if we were to allow the desecration of our wonderful landscape, which provides our tourist industry with its most marketable feature other than our people.

The Minister for Justice's policy memorandum on the bill states categorically:

"The Executive recognises that certain feudal burdens are, however, beneficial".

Despite that, the minister and his colleagues have not seemed to take account of the diversity of the land use to which the legislation will apply. The arbitrariness of some sections will only give rise to problems similar to those that caused the bill to be introduced in the first place.

As was signalled last week in relation to the Adults with Incapacity (Scotland) Bill, I am sure that the minister will welcome many of the amendments that will be lodged, so as to allow unconditional support from across the chamber. I sure that, in so doing, he will show Scotland and the world beyond that this Parliament is a listening Parliament, truly in touch with its people.

Let us not avoid the issues of detail at this early stage. If we do, as good as the rest of the legislation may be, we will be condemned for making a half-hearted attempt at it.

Photo of Allan Wilson Allan Wilson Labour 3:59 pm, 15th December 1999

In preparation for this brief speech, I read the Scottish Parliament information centre note on the abolition of feudal tenure. It begins:

"Feudal tenure is difficult for non-lawyers to understand, with the obscure concepts and terminology making it particularly inaccessible."

As a non-lawyer and lesser mortal, somebody who spent most of their working life arguing with employers' lawyers, I believe that, as Jim Wallace said, the rationale for the abolition of feudal tenure is widely understood and widely supported by ordinary people as well as by lawyers. That rationale, simply put, is that feudalism is outdated, gives rise to injustice and is a legal relic of a society with a regulation and use of land that is no longer relevant and should, as Tricia Marwick said, no longer play a part in the modern Scotland that we are trying to build.

I suspect that, unlike many MSPs, I have had a fairly hefty post bag on the matter, which has resulted in continuing correspondence with the Deputy Minister for Justice. In large part, that is because the Isle of Arran is in my constituency and feudal abuses there are well documented. There have been many instances of feudal superiors charging large sums of money for granting consent to breaches of feuing conditions.

The statutory amendments and modifications to the feudal system that Phil Gallie and others mentioned have had an effect on Arran, as elsewhere. In particular, the Conveyancing and Feudal Reform (Scotland) Act 1970 provided for the Lands Tribunal to adjudicate unresolved disputes about land obligations; in some circumstances, it has varied or changed those obligations. The Land Tenure Reform (Scotland) Act 1974 prohibited new feuduties and provided for the redemption of existing feus. Neither statute abolished those land obligations, however, and the feudal superior continues to have the right to enforce feudal conditions.

On Arran, that has been skilfully exploited by the descendants of the 12th Duke of Hamilton, who, although they no longer own the entire island as they did in the previous century, are fastidious in their pursuit of income from their position as feudal superior, charging tidy sums for agreement to prospective developments. One descendant, Charles Fforde, owner of the 16,000 acre Arran Estates, hit the headlines a few years back for proposing to charge geological students who came to the island to study granite formations. When the Church of Scotland in Brodick planned an extension to the kirk hall, £800 was demanded. That practice is not limited to Arran Estates. When it was discovered that the Free Church at Shiskine had never taken out a feu, the Church was billed for £15,000, which the parishioners paid. Splitting feus can also prove a costly business for home owners on the island. Buying or improving a property can mean a bill of between £500 to £1,000 from the feudal superior.

It is common practice, well beyond Arran, to demand payment in return for granting consent to a variation of feudal conditions, which is one of the main arguments for abolition of the feudal system. The bill will end such abuses, and for that reason I commend it to the Parliament.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party 4:03 pm, 15th December 1999

It is fitting that the Abolition of Feudal Tenure etc (Scotland) Bill is one of the first bills to be presented to the Parliament. I want to focus on a specific proposal that has been identified as a problem by all parties, but which the bill could deal with. I refer to a phrase in the long title,

"to make new provisions as respects conveyancing", and to the proposal in the bill to amend the Conveyancing and Feudal Reform (Scotland) Act 1970.

I remind members that this is part of the "Your sofa is safer than your home" saga. In June 1999, the Minister for Communities rejected the idea of bringing the law in Scotland in line with the law in England to protect home owners against unjust repossession. Following a dramatic U-turn, the minister has been jumping through hoops to create a legislative solution to that unjust anomaly. First she said that she would look at it in the context of responses to the housing green paper and bring forward legislation in the housing bill. That route was abandoned when it was pointed out to her that the green paper had not invited comments on repossession.

My understanding is that she then moved to plan B, with her deputy suggesting that the issue could be resolved through Robert Brown's member's bill on the prevention of homelessness, provided that Mr Brown was prepared to dump all the other measures that he was proposing. Understandably, he was unwilling to do that.

Plan C was the proposition that, at some point, Cathie Craigie would introduce a member's bill to address the Executive's concerns. It is a dubious practice for the Executive to hand-pick back benchers to help to plug holes in its legislative programme. I think that Cathie Craigie is sincere in what she is trying to bring about, but members' bills should be non-party political and the process should not be abused.

I believe that the Abolition of Feudal Tenure etc (Scotland) Bill is a better vehicle for the necessary changes that we have identified across the parties. The same committees will have to address the issue of unjust repossession, whether in a member's bill or as part of this bill—the same consultation process will be involved. In the interests of efficiency, would it not be better to use Executive time to address the issue, rather than using up members' time?

How can we introduce suspended repossession orders, which would give sheriffs the right to take into account a home owner's circumstances before granting a repossession order against them? Four months have passed since I asked the Minister for Communities whether she would introduce legislation—I have yet to receive an answer.

In England, the Administration of Justice Acts 1970 and 1973 allow for the suspension of mortgage repossession orders by permitting the court to use its judgment as to whether a reasonable time has been given to allow someone to pay back the arrears that are part and parcel of their problems. I want to propose an amendment that is not dissimilar to the provision in Robert Brown's bill—we both received help from Govan law centre with drafting. The proposed amendment would amend the Conveyancing and Feudal Reform (Scotland) Act 1970 to give Scottish home owners the same rights as their English counterparts. The Executive may argue that such an amendment is beyond the scope of the bill, but I would be grateful if, when the minister sums up, he would address the following points.

The long title of the Abolition of Feudal Tenure etc (Scotland) Bill includes the phrase

"to make new provisions as respects conveyancing".

Mortgages are covered by conveyancing statute. Section 67 seeks to amend the law on heritable securities by modifying the application of sections 14 to 30 of the Conveyancing and Feudal Reform (Scotland) Act 1970. To introduce suspended repossession orders, we would seek to amend those same sections. Accordingly, this bill already seeks to modify the same area of law that we propose to amend in addressing the problems of repossession orders. I will write to Roseanna Cunningham, the convener of the Justice and Home Affairs Committee, to ask her to consider these matters.

We should challenge Scotland to be more creative and innovative but, in doing so, why do we not provide leadership? If we want to prove that we are a can-do Parliament that uses a bit of common sense for the common good, why do we not end the misery of thousands of people who face repossession by supporting practical proposals for change?

Photo of Pauline McNeill Pauline McNeill Labour

I hoped that Fiona Hyslop would get to the point and wondered when she would mention feudal tenure. I seek your ruling, Presiding Officer, on whether her speech was strictly relevant to this debate. I do not think that the minister can be asked to address points that are relevant to another debate.

Photo of George Reid George Reid Scottish National Party

That is a fair point, as the speech was beginning to stray off the subject. Has Fiona Hyslop finished her speech?

Photo of Scott Barrie Scott Barrie Labour 4:08 pm, 15th December 1999

Like many members of the Justice and Home Affairs Committee, I believed that the feudal system of land tenure was something of an anachronism but I did not know that it was as important as I now understand it to be. I thought that it was the preserve of rural communities and that reform involved a bit of tidying up, which would not affect the vast majority of the population of Scotland. I now realise that that is not the case and that this bill is long overdue—the legislation should have been passed a long time ago.

As we have heard, the Abolition of Feudal Tenure etc (Scotland) Bill is one of a series of bills that will reform the laws of property in Scotland. The Executive proposes to introduce other bills that will deal with title conditions, the law of tenement and leasehold casualties. The feudal system of land tenure in Scotland reflects its historic origins, when land was granted by the monarch in return for military or other services. In turn, land was granted to others, which created the existing hierarchy of structure and which is reflected in the terminology, with words such as "superior" and "vassal".

Obligations that were placed on vassals have evolved into the current system of payments or feuduties. Major reform of the system was made about 30 years ago, when legislation made it impossible to create new feuduties and provided a system for the redemption of existing feuduties. There is no doubt that the law needs a further, fundamental overhaul. Its presumptions and even its language represent a bygone age—a pre-industrial age.

However, when the committee was taking evidence on the bill, it was often stated that not all aspects of the feudal system were—or are—bad. It has been said that not all feudal burdens are oppressive or unreasonable. Currently, burdens allow someone who is selling land next to his own to retain some control over the way in which that land is used, to prevent loss of amenity.

The bill proposes to create new burdens. The Minister for Justice has stated that the proposed 100 m rule was somewhat arbitrary, but that the line had to be drawn somewhere. The bill goes further than the recommendations of the Scottish Law Commission, as it allows a superior to agree with a vassal that a burden on a neighbouring property should be retained, or allows a superior to apply to the Lands Tribunal for Scotland to retain the burden.

As we have heard, the bill proposes to end all superiority rights, including those of the Crown. The Justice and Home Affairs Committee took evidence that suggested that the Crown, acting as paramount superior, could act as the guardian of the public interest, as Tricia Marwick has stated. It was further suggested that the abolition of the paramount supremacy of the Crown would mean that the public interest in land would somehow be lost. I agree with members of that committee that there should be some sort of public interest in land. However, retention of the Crown as paramount superior is not the solution.

The bill prohibits the execution of commercial leases for more than 125 years. As the law stands, such leases could be as long as 999 years. Like the 100 m rule, the 125-year rule is arbitrary. However, without a time limit, property owners could establish some sort of feudalism. In evidence, we heard that some commercial developers might not develop their property if they did not get a lease of a certain length. I would have thought that any developer would be able to establish a rate of return if a lease was as long as 125 years.

This bill is long overdue. It is to be welcomed that, early next century, the feudal system of land ownership in Scotland will be over. I agree with the principles of the bill.

Photo of Linda Fabiani Linda Fabiani Scottish National Party 4:12 pm, 15th December 1999

I am genuinely glad to take part in this debate. One of the most exciting elements of our reconvened Parliament was the realisation that we, in Scotland, could at last address the issue of land reform. The abolition of feudal tenure is long overdue and, as previous speakers have stated, the Executive's initiative is warmly welcomed.

Having worked in rural community development for some years, I would like to remind the Parliament that the concept of feudalism in our society goes beyond legislative issues. Abolishing this archaic legislation should be considered by us all as a step towards changing ingrained social attitudes. However, I want to raise some specific issues, which I ask members—particularly those on the Justice and Home Affairs Committee—to consider in their future deliberations.

Sections 7 to 11 of the bill, which have already been touched on, relate to the abolition of feuduties that superiors are entitled to collect from their vassals and to the payment schemes that the bill will introduce. Often, feudal superiors have not bothered to collect their feuduties for some years, which has resulted in the accumulation of arrears. Owners often do not realise that, in law, they owe money.

My concern is that the prospect of abolition may prompt feudal superiors summarily to demand payment of those arrears. I want to reinforce what the Justice and Home Affairs Committee has stated—that people who live in properties that are subject to feuduties that have been unclaimed for many years may find themselves presented with an unexpected demand for an amount of money that, to a person on a low income, could be substantial. For example, Tricia Marwick referred to the plight of the elderly. A feu of £60 a year may not sound much, but back-dated and with the current formula applied, the demand could cause acute financial difficulty and a prolonged period of indebtedness.

The Executive has conceded that it cannot realistically quantify such amounts. The problem is so complex that, with the best will in the world, no one can estimate the total. By common consent, the purpose of this reform is to abolish the duty scheme and to end an archaic system. We must be careful that the bill does not unduly disadvantage those whom we are trying to help.

Photo of Brian Monteith Brian Monteith Conservative 4:14 pm, 15th December 1999

I find it rather sad to be here today talking about the abolition of feudalism. I address members as a vassal, knowing my superior—who is, of course, the Presiding Officer. I would even tug my forelock, if I could.

I have listened to the debate with some interest and I am hoping to irritate a few people with my speech. When listening to Karen Gillon's speech, which had particularly strong overtones of class warfare, I thought of the phrase, "Empty vassals make the most noise." After those Tony Blackburn-like puns, I will move on to the real story.

Feudalism is, I believe, much misunderstood. If people were only to look at Edinburgh's new town and Glasgow's west end, they would see some of the real benefits of feudalism down the years. Indeed, those who enjoy Princes Street should take care to notice that the north side—which has been devastated since the Town and Country Planning Acts were introduced—faces the south side, where there are no buildings. That allows us to enjoy a view of the castle and Princes Street gardens and is the result of feudalism. Feudalism ensured that, because of burdens, the land could not be developed.

Feudalism has a number of things going for it. It is rather odd to argue that it is archaic simply because it is 800 years old. I do not hear people in this chamber arguing—certainly not today—against Christianity, which is coming up for its 2,000th birthday, just because it is old.

Feudalism in Scotland has changed and will change further with this bill. It will, in a sense, be abolished, but fortunately some of its benefits will be retained. I speak here of real burdens. It should be recognised that all laws have their defects and need to be amended over time. Not to change laws would be a mistake. However, no one would suggest that, because of spin-doctors such as John Rafferty, we should get rid of devolution. I am not convinced that, just because feudalism has defects, we cannot improve it. Nevertheless, we are seeking to abolish it while retaining its good parts.

We should consider the unintended consequences of what we might do—here the minister should take note. Feudalism gives some individual rights. It gives vassals the right to champion their cause against their superior and other vassals in a development. Planning, which people defend as preferable, also gives individuals rights to be heard—heard and, often, ignored by planning authorities. When changing this law, we must give due regard to unfinished business. We must consider taking forward the reform of planning.

This country is used to short leases, but one of the unintended consequences of the bill will be long leases. In a sense, we will anglicise our law—laws that predate this Parliament. It is ironic that one of the first bills that this Parliament seeks to pass would anglicise our law and repeal legislation that was passed by its predecessor, which last sat 300 years ago.

Photo of Sylvia Jackson Sylvia Jackson Labour 4:19 pm, 15th December 1999

I want to concentrate on an issue that has been raised by my constituents. It relates to concerns that have been expressed by home owners in sheltered retirement housing developments. In making my points, I realise that I may stray a little outside the debate on feudal tenure. I ask members to bear with me in this rather complex area.

I want to highlight owners' lack of powers to approve or be consulted by managers on proposals for the maintenance and repair of their properties, service charges and inadequate accounts of expenditure.

It was encouraging to learn from Jim Wallace, in a recent reply to my concerns that, under this bill to abolish the feudal system, the superior's rights will transfer to the residents. I am pleased that a working group has been set up to consider a voluntary code of management practice for owner-occupied sheltered and retirement housing in Scotland. The group includes representatives of developers, managers, owners and other interested organisations, such as Age Concern Scotland, Scottish Homes, the Scottish Federation of Housing Associations and so on, and was set up because of the number of complaints by owners in sheltered housing developments. The managers' powers are often derived from the fact that they are the feudal superior of the development or from conditions that are included in deeds of conditions.

The remit of the working group is to address the proposal to introduce a voluntary code. I gather that it is expected that most management companies will abide by a voluntary code of practice. Where the body managing a sheltered housing development is a housing association, compliance will be mandatory as a condition of membership of the Scottish Federation of Housing Associations. Similarly, private sector companies that are members of the Property Managers Association will abide by the code.

I have three questions. First, what are the implications for buyers of properties in housing developments whose management has not signed up to the voluntary code? The whole process of buying such a property—as I know only too well from going through it with a relative—is complex, and management issues might not be at the forefront of an older person's thoughts. Older people need to be protected from companies that will not sign up to a voluntary code. Is a mandatory code the only way in which to provide that protection?

Secondly, could the minister say what feedback on the voluntary code has been received during the consultation period? Thirdly, could he give an indication of the timetable for either a voluntary or a mandatory code?

Photo of Fergus Ewing Fergus Ewing Scottish National Party 4:22 pm, 15th December 1999

I should declare an interest, as I am a practising solicitor. I say practising, as few people have accused solicitors of being perfect—certainly not in my case. It is the Parliament's extremely difficult task to make this legislation perfect. I have found several imperfections, which I will address in the hope that we might gain some answers from the Executive—I very much look forward to that.

The Minister for Justice described the 100 m rule as arbitrary, but it is more than arbitrary—there is a danger that we will set up a form of legal apartheid between urban and rural Scotland. As Lyndsay McIntosh and others pointed out, almost all rural Scotland lies within 100 m of feudal estates. Excluding Inverness, Nairn and Fort William, most of my constituency, and most of rural Scotland, will fall within that 100 m line. From where does one measure the 100 m? It is measured not from the laird's castle, but from any habitation or permanent building that is owned by the feudal superior.

The effect of this bill might be, "The feudal system is dead; long live the feudal system in rural Scotland." I hope that all of us—with one or two exceptions—believe that that is not what we want to achieve. Therefore, I hope that the 100 m rule will be greatly restricted, as I do not know what continuing interest a feudal superior would have to enforce restrictions in an area within which he or she does not live. That would be unfair.

The essence of what we are trying to do is not to remove nomenclature—to get rid of the feudal names "vassal" and "superior", odious though they may be—but to remove the dead hand of unnecessary control. Brian Monteith is quite wrong—the feudal system has been entirely replaced by town and country planning. I am not an unqualified fan of that system, but it is absurd none the less to have two systems, and town and country planning provides a much more modern model.

Section 20 goes to the heart of the matter—the circumstances in which an owner can go to the Lands Tribunal to ask for a variation or discharge of land obligations. Such are the conditions that one has to ask permission to install a toilet in one's house or to build a conservatory or extension, and pay between £1,000 and £1,500 for the privilege. Allan Wilson highlighted that problem well in his comments about the odious Charles Fforde. If the systems of making payments in exchange for minutes of waiver are perpetuated, as I believe this bill will allow, the bill will fail Scotland.

I serve on the Subordinate Legislation Committee. Service on that committee has been compared to watching paint dry as an exciting diversion, but committee members have pointed out that section 20 is a Henry VIII clause—it will allow the amendment of primary legislation by subordinate legislation. I am pleased that, at stage 2, the Executive will address the circumstances in which section 20 will apply. If the Executive does not do that, we will be doing Scotland a grave disservice.

I am sorry that the Executive has not taken the opportunity to get rid of feuduty once and for all. It is an entirely artificial property right. Believe it or not, there are four things that one can do to a feuduty: pay it, redeem it, allocate it or apportion it.

Photo of George Reid George Reid Scottish National Party

Please make your comments brief, Mr Ewing.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I know that lawyers have wasted hundreds of thousands of hours charging unnecessary money to clients for doing all those entirely useless things to feuduties.

In that spirit—and to avoid the Presiding Officer's black book—I urge the Executive to consider those criticisms.

Photo of John Farquhar Munro John Farquhar Munro Liberal Democrat 4:27 pm, 15th December 1999

As members will appreciate, the bill is complex. Nobody imagined at the outset that it would be easy. Some difficulties have yet to be discussed. If it is any consolation to my friend Fergus Ewing, I am sure that it will be a bonanza for the legal profession. For the next 50 years, lawyers will be bankrolling as a result of it.

I gather that there is concern about what the ultimate superior should be called. There seems to be resentment about calling it the Crown, the Parliament or the feudal superior. That does not exercise me too much, but it is something on which we will have to agree. I am sure that most rational people agree that legislation is necessary and reform long overdue.

Another issue that has exercised my mind is the distinction between public ownership and public interest. Many parts of Scotland are currently in public ownership. For example, the National Trust for Scotland owns many properties. We must be clear about what is implied by the term public interest. Is it confined to a local community or does it apply to the wider community of Scotland?

Scanning the draft documents, I note that some change is just slipping through. I am concerned that the section on the barony title suggests that it can be transferred by simple assignation. That is a simplistic view of the matter. People who have a barony title should have to demonstrate their title to that barony. That would be in the interests of the public as well as of the land. We should not accept, as some people would like us to, that the land stops at the high-water mark; there should be more public involvement before any of those matters are simply disposed of by assignation.

The other issue that has exercised my mind—I see little in the bill to address the situation—is other uses of land that give it value. Who, or what, will control sporting rights, fishing rights and mineral rights, all of which have a community interest? We must have a clear answer.

Photo of Euan Robson Euan Robson Liberal Democrat 4:30 pm, 15th December 1999

As many members have said, the bill is welcome. According to the explanatory notes, it will repeal 46 acts. I am sure that the Minister for Justice knows them off by heart.

The bill is part of a package. Although members have alluded to the difficulties of considering it without sight of the title conditions bill and the law of the tenement bill, it had to come first. To put it in layman's terms, we have to clear the site before building the new edifice. We will retain a few of the useful features of the old system, but the updating of Scots law is to be welcomed.

There are four issues that I wish to concentrate on briefly. The first is the abolition of the feudal system. We should abolish the system, not just reform it. The Crown's paramount superiority should go and outright ownership should come in its stead. I have no objection to the incorporation of some form of public interest section in one of the later bills, but I have yet to hear what it would mean in practical terms. Given that the appointed day in this bill will be 18 months to two years down the line, there could be a seamless transition of public interest from the Crown as paramount superior to whatever replaces it as determined in other bills in the next two years. We may return to this issue during stage 2.

It has been said that capping compensation would be sensible, but that might contravene the European convention on human rights. We should consider the people who buy feudal superiorities now or after enactment of the bill, and add a section to prevent their obtaining compensation. In other words, we could restrict the ability of the raiders of the lost feus, as Roseanna Cunningham put it, to claim compensation, but not interfere with those who depend on feuduties for their income, such as the Church of Scotland. The payment of arrears may be governed by the statute of limitations. I wonder what would be the practical effect of capping.

Fergus Ewing alluded to section 17(7) and the 100 m rule. I do not share his concerns, because habitation is written into the section. We need to explore that issue in some detail at stage 2. There may be some grounds for reducing the figure to 50 m, for example, but I am not convinced by his case that the feudal system will continue by default because of the 100 m rule.

On section 65, there is a strong case for accepting that the 125-year limit on commercial leases should be extended to 200 years; 125 years is beyond most people's lifespan, so I do not see the difficulty with making the limit 200 years. If it is felt that the introduction of a limit into the Scottish system is artificial, the 125-year limit would be reduced. If, however, the 125-year limit is accepted and there is some identifiable prejudice to the commercial property sector in Scotland, 200 years could be accepted.

Having finished slightly early, Presiding Officer, I hope that I go into a different colour of book from the one that was mentioned earlier.

Photo of George Reid George Reid Scottish National Party

Yes, you are comfortably within time—by 14 seconds.

Photo of David McLetchie David McLetchie Conservative 4:35 pm, 15th December 1999

It is indeed an irony that one of the first acts of the Scottish Parliament will, as my friend Brian Monteith said, be to abolish the feudal system of land tenure which—for all its faults—is distinctively Scottish. I always thought that one of the strongest arguments in favour of the Scottish Parliament was that it would help to preserve distinctive traditions such as our legal system.

For someone like me, who spent 25 years in the legal profession before coming to the chamber, the end of the feudal system is an occasion for saying goodbye to some old friends—the more esoteric aspects of the system that people such as Fergus Ewing, Robert Brown, Christine Grahame, Roseanna Cunningham and I laboured to comprehend in our law classes at university.

So it is goodbye to entails and—by section 53—goodbye to thirlage, a form of restrictive trade practice that I always thought particularly interesting. Saddest of all, it is goodbye to the kindly tenants of Lochmaben, an admirable body of people. I am surprised that they are being cast out in this manner, when their very name sounds like a social inclusion partnership. We are allowing them to pass without any reference to the tradition that they derived their heritable tenancies from grants made by King Robert the Bruce to his personal servants and their families. I am surprised that members of the Scottish National party—who are always telling us to remember Bannockburn—are prepared to cast such fine people into the legal dustbin with no further thought or comment.

However, we accept that any legal system must adapt or atrophy. There is no doubt that feudalism has many faults and there have been many changes to the system over the years. Most recently, the Land Tenure Reform (Scotland) Act 1974 prevented the imposition of new feuduties and provided for compulsory redemption on sale and voluntary redemption at return dates. In conjunction with the pernicious effects of inflation, that has meant that feuduties, for years, have been dying a lingering death. It is only right and proper that the Parliament should finally put them down.

Before members rush to condemn the feudal system out of hand, a number of factors ought to be remembered. We should remember that outright ownership of land does not mean licence to do as one pleases. There will still be a need for conditionality to be attached to the ownership of land; that was one of the strengths of the original system. We must be careful, in reforming our system, not to throw the baby out with the bath water.

Indeed, the saving provisions in the bill have been constructed out of recognition of the value of the feudal system and of the fact that certain categories of burden are beneficial to our community. Those have been identified as common facilities burdens, neighbour burdens, conservation burdens and maritime burdens. I welcome the fact that those are to be preserved. Those sections of the bill will require careful examination in order that their utility is preserved for future generations of Scots.

A number of concerns have been raised in the consultation process and are well recorded in the Justice and Home Affairs Committee's report. I welcome the minister's open mind on, for instance, the proposed limit on the length of commercial leases. We have to be careful on that, because although 125 years may seem like an eternity to us, that is not necessarily the case in terms of the lifetime of buildings and the investment in them by property companies. We should seek further evidence on the subject before finally determining a figure.

We should also look to amend compensation, which is another area of concern. The evidence of the Royal Institution of Chartered Surveyors suggested that the proposed redemption factor is too high for today's market and the payment period of 10 years too long. I welcome Christine Grahame's call for a reduction in the multiplier and a shortening of the instalment payment period. The Executive should take up that suggestion and, if I may say so, ignore the suggestion of Pauline McNeill, who went in precisely the opposite direction by saying that the instalment facility should be extended.

If we are going to put the feudal system down, let us do it neatly and tidily and in reasonable time. We must not prolong the collection-and-payment agony.

In principle I am happy to support the bill to abolish the feudal system, but we should pay tribute to its achievements. It married private interest with public and communal interest—an achievement that I would have thought would make it a model for new Labour in its desperate search for the third way.

The feudal system's most important function was as a system of development control. In that respect it has proved far more successful than many of our modern representatives in local government. It was, of course, the feudal system that created the architectural glories of Edinburgh's new town, but it was the Town and Country Planning Acts and local planners and councillors that ruined Princes Street. Tricia Marwick was well wide of the mark when she suggested that this reform is some 200 years too late.

The end of the feudal system will mean the welcome end of abuses of the system by superiors. Contrary to the myth that the feudal system was exclusively a charter for unscrupulous private individuals to buy up superiorities to exploit the system and extract money from the rest of us, many of the worst offenders are—as my friend Phil Gallie pointed out—Labour or SNP-run local authorities. Labour-run City of Edinburgh Council charges £50 plus VAT for consent to install new windows and patio doors. It charges £200 plus VAT for consent for the erection of a porch or conservatory. Angus Council—run by the SNP—charges £60 plus VAT for such consent.

Photo of David McLetchie David McLetchie Conservative

Local authorities' imposing those charges on top of charges for building warrants and planning consents is a clear abuse of the system. Edinburgh's council seems to be using the system as a means of controlling alleged anti-social behaviour. One of the first cases to be referred to me as an MSP concerned a dispute among neighbours in Wester Hailes. I discovered that a housing officer from the council had written to one of the parties in the following terms:

"I am aware that you have bought your house, however the Council remains your feu superior and if necessary I can instruct our lawyer to irritate the feu and I will seek recovery of your property."

Stripped of legalese that means, "We can throw you out of your home without a penny in compensation unless you behave."

Photo of George Reid George Reid Scottish National Party

I am sorry, Mr McLetchie, but you are almost two minutes over your allotted time.

Photo of David McLetchie David McLetchie Conservative

I beg your pardon.

Those abuses should be eliminated now. The appointed day is too long away and I call on the Executive and the SNP to instruct their colleagues in councils to end such abuses of the system. They can do that without legislation and without waiting for two years.

I am sorry to be in your black book, Presiding Officer.

Photo of George Reid George Reid Scottish National Party

You were two and a half minutes over time, in fact.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 4:43 pm, 15th December 1999

Some of us who were asked to speak in this debate thought initially that we had drawn a short straw. We wondered what we had done in our past lives to deserve this, especially when we saw the word "burden" in the bill. We wondered whether this was another such burden—real or otherwise.

Those of us who made the mistake of picking up the bill before picking up the explanatory notes had the thought that we had been stitched up confirmed. When we saw phrases such as "dominant tenement" we wondered whether that was the medieval equivalent of high-rise flats. "Disentailment on the appointed day" sounded particularly nasty and made me think of the removal of specified risk material. We were glad—on further perusal—to see that thirlage was to be abolished. Anyone still being forced to take his or her corn to a particular mill will be grateful when this bill is passed.

As David McLetchie said, the south-west of Scotland will never be the same again after we sweep away the kindly tenants of Lochmaben. I have a vision of those harmless descendants of the good King Robert sitting in their cottages reading The People's Friend and Francis Gay's column in the Sunday Post being snuffed out by the onset of the new millennium. As the minister said—they have to go.

Robert Brown said that the bill is interesting historically. The list of statutes that it will repeal includes several that were passed by previous Parliaments of Scotland, and some that date from before the union of the Crowns. That, perhaps, brings home to us how much in need of review some of the legislation is.

Let us be clear that this is a serious matter and that reform is long overdue. Jim Wallace talked about this being detailed legislation and the difficulty of finding time at Westminster for such legislation. Robert Brown made the same point. It is therefore a pity that the list of devolved subjects is not much longer, so that we can extend that valuable principle to deal with other matters, which we are not allowed to deal with at the moment.

Roseanna Cunningham referred to the tight time scale under which the committees have to work. We will have to address that problem, which could be worsened if the membership of the Parliament is reduced in accordance with the Scotland Act 1998. That would certainly have implications for our committees.

More important in the short term, Roseanna Cunningham raised the issue of the paramount superiority of the Crown, to which other members have alluded. We heard about a legal opinion, which was received only today. We look forward to further discussions on that issue, because it is certainly complex. There does not seem to be unanimity on it among lawyers—as if there ever is.

Roseanna Cunningham, Christine Grahame and Robin Harper mentioned the bill's omission of the public interest as a concept. I would welcome comments on that, as it is a valuable concept that we should include in the bill if at all possible.

Several members picked up on the issue of a restriction on the number of claims for compensation for feus. That argument seems to be worth pursuing.

Phil Gallie referred to some abuses that would be removed by the bill. He also referred, as did his leader, to the waiver of charges levied by councils. Whether we should criticise councils for levying charges, given their other financial difficulties, is a moot point. Both Phil Gallie and David McLetchie felt free to mention that, but perhaps the only reason there are no Tory councils levying such charges is that there are no Tory councils.

Brian Monteith spoke affectionately of feudalism. One could almost picture him using the same arguments in defence of the hereditary House of Lords; the arguments seemed almost identical. However, it seems strange that the Tories should defend a tradition that is Norman French in origin, given their antipathy to our continental neighbours.

Photo of Brian Monteith Brian Monteith Conservative

Will the member confirm that Robert de Bruis was Norman French in origin?

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Yes, but I have no antipathy towards our continental neighbours. We also know, in the context of Bruce and Wallace, where the Monteiths were on one occasion.

Phil Gallie also mentioned the maximum length of non-residential leaseholds. He referred to some objections, but I need to be convinced that we must have planning horizons of greater than 125 years. In my experience, most commercial enterprises have planning horizons that are far too short rather than far too long. I am not sure how much time we are allowed in this debate.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Fergus Ewing raised some problems regarding the 100 m rule in rural areas. I hope that the minister can say either that his fears are unfounded or that they will be addressed in a review of the legislation.

Fiona Hyslop ingeniously identified the possibility of using the bill to tackle a problem in relation to repossession orders. That is an interesting suggestion and I will be interested to hear whether the Executive might consider bringing that forward.

As the minister said, we must be grateful to the Scottish Law Commission for its work on this issue. If reading the bill is difficult, it must have been a hundred times more difficult to write it. I welcome the bill; it is an overdue reform of our anachronistic legislation and it is part of a wider reform relating to land.

Photo of Angus MacKay Angus MacKay Labour

That should be more than enough time to deal with the complexities of the bill.

I have listened with substantial interest—to my astonishment—to the contributions of MSPs from all parts of the chamber. Some MSPs spoke with drawn looks on their faces; others with great enthusiasm. I would like to put on record my thanks to the Scottish Law Commission and anybody else who was involved in the drafting of what seems to be an inordinately long and complex bill.

I am sure that nobody in the chamber would disagree with the suggestion that the feudal system should be abolished and replaced with a system of simple ownership of land. Nevertheless, a substantial number of matters of detail were raised in the debate today and it is right that there should continue to be further debate.

In its stage 1 report on the bill, the Justice and Home Affairs Committee welcomed the Executive's willingness, expressed in the policy memorandum, to indicate areas on which we had not yet reached a final view. In the same spirit, the Executive continues to welcome constructive suggestions that are intended to improve the final bill. I am sure that members will agree that this Parliament should produce high-quality legislation and, particularly in this area, get the legislation right. The Minister for Justice has mentioned some areas where we intend to lodge amendments to improve the bill.

Christine Grahame said that strong coffee would be required by anyone sitting down to read the bill or any of the attendant briefings. I think that something stronger than coffee would be required.

I was entertained and amazed by the contributions of Mr McLetchie and Mr Monteith. I almost got the impression that if Scotland still had legislation allowing slavery and transportation, it would be our duty to defend that legislation in the interests of Scottish history.

Photo of Brian Monteith Brian Monteith Conservative

Does the minister recall that it was a Tory who brought forward the abolition of slavery in Britain?

Photo of Angus MacKay Angus MacKay Labour

I do not think that I will get into that debate, as I might be tempted to make comments that I would regret later.

Mr McLetchie referred the Wester Hailes case that he spoke about to Mr Gray, as Mr Gray was the constituency MSP. His action is an example to all the regional list MSPs in the chamber.

One of the earliest points that was made today was that this is not a stand-alone bill. The Minister for Justice covered that in his opening speech and said that we will continue to monitor the position carefully while the Scottish Law Commission develops its proposals on title conditions. He made it clear when the bill was announced that it was closely related to the report on real burdens that was still to be produced by the Scottish Law Commission. We have at no time attempted to hide that fact, which the Justice and Home Affairs Committee would acknowledge to be the case.

Roseanna Cunningham suggested that payment of compensation could be tied to the provision of information on land holdings. Whether that can be done is questionable, as the entitlement to compensation is linked to the European convention on human rights. The removal of the right to feuduty might be regarded as a form of expropriation. We might be able to take action on that matter, but will wait until the committees have conducted detailed examination of the bill.

A similar situation exists with regard to the suggestion of a cap on compensation for feuduty. It might be that, under the European convention on human rights, such a cap would constitute expropriation of the superior's property. We will take cognisance of that when we consider amendments.

At a late stage—something that the Scottish National party acknowledged—the opinion of Sir Crispin Agnew of Lochnaw QC was brought forward. It would be helpful if the Executive were able to take some time to reflect on Sir Crispin's opinion. However, an interesting and important point is raised, in relation to the interest of the Crown. That was echoed by Robin Harper, among others.

In so far as the Crown is a paramount superior, it can only enforce private rights in land. The Crown exercises its public interest role through giving royal assent to acts of Parliament and through the actings of public authorities. It follows, then, that there should be no need to prescribe specifically in any bill that the Crown acts in the public interest. That point bears further examination. At the time of its consultations on general land reform, the land reform policy group invited comments on the proposal for an enhanced role for the Crown in relation to the ownership of land. There was little support among respondents at that time for the creation of new public rights for the Crown. The idea was—rightly, I think—regarded as undemocratic, old-fashioned and potentially extremely expensive.

The feudal system of land tenure and the general law of real burdens—that is, conditions on land—relate to the private regulation of land by property owners, including ordinary householders. The feudal system itself provided a kind of planning system, before such legislation was ever in existence. Its effect has been felt much more strongly in urban than in rural areas, so abolition will also impact more strongly in towns and cities than in the countryside.

It is difficult to see how the Crown could represent the public interest in relation to burdens affecting tenement property or burdens imposed by local authorities when, for example, council houses were sold under the right-to-buy legislation. The Scottish Law Commission has been extensively consulted on the arguments put forward by those who wish to see a statutory provision for public interest in land, by means of the Crown playing some kind of guardianship role.

The commission has commented that such an approach would mean that feudalism would not be abolished. Property owners would remain as feudal vassals, albeit as direct vassals of the Crown. The bill would require fundamental surgery and feudal law would have to be retained, to regulate the relationship between Crown and subject. As a result, the new system would continue to be almost as complex as the existing one.

One of the important benefits to be derived from feudal abolition is a uniform, clear, simple system of land ownership. That would not be achieved if the vassal-Crown relationship were retained. The commission has commented that it might be absurd to preserve the feudal system merely to allow the symbolic declaration of public interest. It went further, observing that such a declaration had little relevance to tenement flats and other urban properties. That gives a strong case of presumption against the notion that we should retain public interest vested in the Crown. Again, if members feel sufficiently strongly, it is an issue that can be further debated at stage 2.

I will pass on from the issue of the lack of defined public interest in relation to the Crown, as it is bound up in one debate. Tricia Marwick referred to the lack of research on properties subject to feuduties, an issue that has been raised in other quarters. There is no reason to doubt the accuracy of the Scottish Law Commission's assessment that less than 10 per cent of properties in Scotland are still subject to feuduty and that most of those sums are small. Many who have sold a property since the Land Tenure Reform (Scotland) Act 1974 have had to redeem the feuduty on that property. In this legislation, we are effectively sweeping up the remainder, but at stage 2 we can look again at the detailed arrangements for payment by instalments to minimise any risk of hardship.

To address one final point, Phil Gallie raised the issue of the 125-year limit on commercial leases. The 125-year figure emerged from the Scottish Law Commission after consultation on that specific issue. The Executive recognises that there is room for argument and will be willing to discuss precise figures further at stage 2. As the Minister for Justice explained earlier in the debate, abolition of the feudal system is simply the first step in a programme of property law reform. This bill will be followed by another on real burdens and title conditions, which will in turn set the scene for the reform of the law of the tenement. The programme of technical reforms of property law should be seen as running in tandem with that of more general land reform.

Apart from the land reform bill and the bill to introduce national parks in Scotland, in future years, there will be further legislation on sites of special scientific interest, agricultural holdings and crofting. I am delighted that, after many years of neglect and inertia, land and property reform will at last take centre stage in political debate, forming a major part of the Scottish Parliament's initial legislative programme.