The next item of business is consideration of business motion S1M-798, in the name of Mr Tom McCabe on behalf of the Parliamentary Bureau, on the timetabling of stage 3 of the Abolition of Feudal Tenure etc (Scotland) Bill. I ask any member who wishes to speak against the motion to press their request-to-speak button now.
That the Parliament agrees that the time for consideration of Stage 3 of the Abolition of Feudal Tenure etc. (Scotland) Bill be allotted as follows, so that debate on each part of the proceedings, if not previously brought to a conclusion, shall be brought to a conclusion on the expiry of the specified period (calculated from the time when Stage 3 begins)— Section 1 to section 15 - up to 1 hour Remainder of the Bill - up to 2 hours Motion to pass the Bill - no later than 2 hours 30 minutes.— [Mr McCabe.]
Before we begin stage 3 proceedings on the Abolition of Feudal Tenure etc (Scotland) Bill, I want to say a few words about the procedures that will be followed. Members will be becoming familiar with them. We will first deal with amendments to the bill and then move to a debate on the question that the bill be passed. For the first part, members should have to hand SP bill 4A, as amended at stage 2; the marshalled list, which contains all amendments that have been selected for debate; and the groupings that I have agreed.
Amendments have been marshalled in the order in which they relate to the bill; that is, all the sections in order followed by all the schedules in order. I will call each amendment in turn, in the order in which they appear on the marshalled list. Amendments will be debated in groups where appropriate. Each amendment will be disposed of in turn. An amendment that has been moved may be withdrawn with the agreement of members present.
The electronic voting system will be used for all divisions; I have decided to allow an extended voting period of two minutes for the first division in each group of amendments. I propose to allow amendments that are consecutive on the
The best laid plans of mice and men, Deputy Presiding Officer—on a point of order. I wrote to Sir David Steel on this matter, which relates to amendments that are submitted but rejected as inadmissible. I accept the position under the standing orders, but seek your guidance on the procedures for changing the standing orders so that amendments that are put forward and rejected are published, with the reasons for the rejection, and on whether the Procedures Committee might consider a method whereby, if the member wants to press on with the amendment, it can be put to the chamber. I accept the ruling under the standing orders, but there is room for change.
All I can say is that you have accepted that the Presiding Officer ruled in terms of the standing orders, so I cannot accept that as a point of order. The rules are clear that it is for the Presiding Officer to determine issues of admissibility at stage 3, and only if that is done in advance can members prepare for the debate with a clear understanding of the options available. You are free to raise the matter independently with the Procedures Committee if you so wish.
Section 2—Consequences of abolition
Amendment 1 is a paving amendment for the substantive amendment in this group, amendment 37. I will begin by reading the effective parts of amendment 37 because it is important that we establish that what is being suggested is that
"on the appointed day the rights of the Crown and the Prince and Steward of Scotland to create a new feudal estate, to charge a feu duty and to enforce a feudal burden are abolished; but nothing in this Act shall be taken to supersede or impair any other property rights or interests held by virtue of the ultimate superiority of the Crown or the superiority of the Prince and Steward of Scotland for and on behalf of the public interest."
A subsection follows.
It is important to stress that the amendment arises directly out of the long-running debate about where the public interest lies once we move
The amendment attempts to ensure that the public's interest in land is provided for explicitly. That aim is supported by many organisations in Scotland, including Land Reform Scotland and the Scottish Land Reform Convention, which is sponsored by, among others, the Convention of Scottish Local Authorities, the Scottish Trades Union Congress, the voluntary sector and the Churches. For example, during a visit to Westminster, the Church of Scotland church and nation committee wished to discuss land reform and its concerns about the introduction of absolute ownership.
Those concerns have not gone away. The Scottish National party favours the inclusion of a provision whereby the public's interest will be explicitly protected. We have argued for a number of years for the reform of Scottish land laws, to give all communities a real say in their future, and we have long wanted an end to feudal tenure. However, we also firmly believe in the sovereignty of the people. The danger is that without such an explicit statement in this or some other bill, creating a system of absolute ownership might cause us difficulties in the future.
In evidence to the Justice and Home Affairs Committee on 29 March, at stage 2, the Executive argued that retention of a Crown right to act in the public interest would mean retaining the feudal system. Nothing could be further from the truth. That is explicitly not the intention of the amendment—a reading of the amendment would reveal that fact.
I heard the Minister for Justice on "Good Morning Scotland" today referring to the iniquities that occur under the present system—he will get no argument from me about that. However, the Executive has argued separately that sections 56 and 58 are sufficiently drafted—presumably, the Executive will continue to argue that, even if its amendment is agreed to today—for the purpose of public interest. On 15 March, the Deputy Minister for Justice told the committee:
"The purpose of the bill . . . is to introduce a system of outright ownership of land."—[Official Report, Justice and Home Affairs Committee, 15 March 2000; c 921.]
It would be foolish to propose that that could not lead to danger, especially as the public interest is not explicitly stated anywhere in the bill. If it were,
During the stage 1 debate, I referred to the opinion of counsel, which I had just received, that
"the Crown owns all land for the benefit of the community of the realm."
I think that
"for the benefit of the community of the realm" is just another way of saying "in the interest of the public". It was also his opinion that section 56 did not save any rights of the Crown in or over the land held for the benefit of the community. Neither was he of the view that the law is clear as to which rights over land derive from the royal prerogative and which from the paramount superiority. Specifically, counsel was not clear about the category that the regalia majora and the regalia minora fall into—I do not want members to fall asleep, as this is important.
The Scottish Law Commission discussion paper, which was published in July 1991, noted:
"The origins of the Crown's rights to the regalia both minora and majora are uncertain and the extent of these rights has never been clearly defined. Accordingly, we cannot be sure that an unqualified abolition of the paramount superiority would not affect the crown's right in the regalia."
The Law Commission is to be congratulated on recognising the vagueness that lies at the heart of the present system. The amendments seek to recognise the truth of the extent of that vagueness. The express view of many is that public interest had indeed been part of the Crown's remit. If we accept, as I think that we must, that the present rights of the Crown are vague, we must accept that it is possible that they include the public interest. This may become more important in future. When the Crown legislates through Parliament to control use of the land, what is the basis of that control if a system of absolute ownership has been introduced?
At the risk of getting Phil Gallie overexcited, that question might not remain entirely academic if there is ever a related challenge under the European convention on human rights. There are problems with the system of absolute ownership in the United States of America. There, owners may demand the right to be compensated by the state Governments for any and all restrictions placed on land use.
Why do we imagine that we will not, sooner or later, find that point being canvassed in a court in
The Executive has sought to deal with the concerns through amendment 13. That is confined to the specifics of the regalia majora, which the Law Commission has already indicated are very vague, but it is not a general saving amendment, and it is still our view that that is what is required.
I stress again that feudal tenure is to be abolished, and rightly so—that is explicit in amendment 37. Frankly, I would not have minded an abolition of the monarchy bill but, until that comes along, we have to argue in the context of the potential vagueness of the Crown interest in land. That is a vagueness which the Law Commission report of 1991 recognised. I commend that view and amendments 1 and 37 to the chamber.
I move amendment 1.
I thank Roseanna Cunningham for lodging her amendments, which give the Parliament an opportunity to discuss one of the more contentious aspects of the legislation. Although this is already much on record, I welcome again her general support for the overall thrust of this bill to abolish the feudal system and all the archaic iniquities that go with it.
The question of Crown rights and the public interest in land has taken up time in the Justice and Home Affairs Committee, and the Executive has received many representations from interested parties. My officials have conducted considerable research and investigation into many of the points raised, including those raised by Roseanna Cunningham in her comments.
The Executive does not accept that the feudal system of land tenure embodies a legal principle whereby the Crown represents public interest in land. Among those who gave evidence to the Justice and Home Affairs Committee was Professor Robert Rennie, professor of conveyancing at the University of Glasgow. He stated unequivocally:
"Currently, as feudal superior, the Crown does not represent the public interest . . . 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 366-67.]
It has been asserted that the public interest in land is inherent in the feudal system, and that it should be retained. I think, however, that it is incumbent on those who make that case to give a few concrete examples of how the concept of
This is an important point because the public interest is important, but I suggest that there are a number of ways in which the public interest in land and what is done to it can be vindicated without having somehow to import the concept of the ultimate superiority of the Crown.
Here we are in a Scottish Parliament that is about to celebrate its first anniversary—a demonstration of democracy in a modern Scotland. As a Parliament, we can take action and pass legislation to vindicate or assert the public interest in relation to land. It is well known that the Executive will introduce legislation to provide a right of responsible access to land, and to provide a community right to buy in respect of land. The Executive has measures in place for the protection of our natural heritage. Sites of special scientific interest are designated, and legislation is on its way for the designation of national parks. Our local authorities are also democratically elected institutions that can exercise a protection of the public interest in relation to land. They frequently do so through the mechanism of the planning system.
There are a number of ways in which elected bodies such as this Parliament can protect and assert the public interest in land, without our having to plead in some way or another to our misty history and some notion of the Crown that, in practice, has never been shown to exist.
I do not for a minute disagree with the examples that the minister gives of elected bodies protecting the public interest. However, does he accept that his argument could equally be made about the Governments of the states in the United States of America? The argument does not stop them being challenged, and does not stop compensation being demanded from them in a way that I think we would be laying ourselves open to here.
At the moment, the Parliament in the United Kingdom works as the Crown through Parliament. I wish to remove that and replace it with something else entirely, but we have not done so yet. However, if we remove the protection in respect of land ownership, where will protection lie if there is a challenge? If we are not careful, any planning or conservation legislation could be challenged under the European convention on human rights.
Roseanna Cunningham properly refers to the ECHR. Any legislation, any act, that this Parliament passes, and any action of the Executive or—from 2 October—of any public body
The first thing that I did was to acknowledge that; I was simply considering an extreme example. Even if we were to retain the feudal system, or even if we were to retain the ultimate superiority of the Crown—and I repeat the point that no one has yet come up with any specific examples of where this so-called protection of public interest has been put into practice—it would not be open to this Parliament to expropriate property without compensation, other than in exceptional circumstances.
Ms Cunningham made the point about outright interest and direct ownership, which she felt would open us up to all sorts of possible challenges. When she thinks about it, she will recall that land in Orkney and Shetland has been held udally since Orkney and Shetland became part of Scotland in 1469. As far as I am aware—and I might be giving my constituents ideas—although there was no direct feudal relationship with the Crown, no challenges were made during those 530-odd years. Although I acknowledge the sincerity with which the point has been argued by Ms Cunningham and others, it does not appear to have any real substance.
Amendment 13, in my name, is intended to address the point that Roseanna Cunningham picked up from the Scottish Law Commission's report regarding the regalia majora and the regalia minora. For the avoidance of doubt, the purpose of the amendment is to address the concerns that were expressed by the Scottish Law Commission.
The regalia majora cannot be sold or alienated by the Crown. They include rights to the sea bed in respect of public rights of navigation and fishing; rights on the foreshore in respect of public navigation, mooring boats and fishing; and rights in the water and bed of navigable rivers, again in respect of navigation. The amendment puts it beyond any doubt that all of those are preserved as part of the Crown prerogative.
The regalia minora are property rights that the Crown may exercise as it pleases and that it can alienate. They include ownership rights on the foreshore and on the sea bed; rights to treasure and lost property; rights in gold and silver mines; and rights in wrecks, among other rights.
When we have considered the matter, the main difficulty has been that there has been uncertainty.
In relation to regalia minora, or property rights that are capable of alienation by the Crown, we believe that if they have not been alienated by the Crown, they have never entered the feudal system, and so would be unaffected by abolition. If they have been sold prior to the appointed day of abolition, section 2 will convert the present vassal's interest into simple ownership.
On the other hand, the regalia majora include the Crown's rights in the sea and on the sea bed, and all the other rights that I mentioned. They could not be abolished by the bill because they were not capable of alienation. If they were constituted as burdens on land, they will survive to the extent that they are maritime burdens, which are covered in section 58. There is some authority that the regalia majora are derived from prerogative—if that is the case, they would fall within the existing saving section 56 regarding powers exercisable by virtue of the prerogative.
Amendment 13 tries to clarify the situation, in view of the uncertainty that has been expressed. In accordance with rule 9.11 of the standing orders, I wish to advise Parliament that Her Majesty, having been informed of the purport of amendment 13, has consented to place her prerogative and interests, so far as they are affected by the bill, at the disposal of Parliament for the purposes of the bill.
I must emphasise that the Executive does not believe that there is any real substance to amendment 37 because we do not believe that there are any other property rights or interests that are held by virtue of the ultimate superiority of the Crown, beyond those that the bill seeks to abolish at the same time as the rights of feudal superiors. It is the Executive's intention to abolish the Crown's ultimate superiority, along with all other superiorities and vestiges of the feudal system. To do anything else could frustrate the introduction of the system of simple ownership of land that will result from the abolition of feudal tenure.
If Parliament passes the amendment in the name of Ms Cunningham, that might create uncertainty and might also lead to litigation in future. That could bring about consequences that were not intended by those who support the amendment in good faith.
The amendment in Ms Cunningham's name also appears to suggest that the superiority of the Prince and Steward may include property rights and interests that are held for or on behalf of the public interest. That is an extension of the argument that ultimate superiority of the Crown embodies the public interest in land. The Executive believes that the Prince has no special legal status in that regard.
A further difficulty is that the amendment that
Maritime burdens can be enforced by the Crown only. If Parliament accepted Roseanna Cunningham's amendment, there might be some doubt whether the Crown would be able to enforce such burdens. As the thrust of the amendment seems to be to preserve any right that is held in the public interest, it seems to be illogical to put at risk the necessary burdens that safeguard piers and harbours in the public interest.
What is being argued for in Ms Cunningham's amendment has no substance. The bill—combined with amendment 13, to which I have referred—will preserve any Crown interests that we want to preserve. There is public interest, which is vindicated by established bodies such as this democratically elected Parliament, local authorities and Westminster. Harking back to the Crown by means that have never been properly established does not form a part of our seeking a property law for Scotland for the 21st century.
This is one of the interesting parts of today's debate. It is important that Parliament has an opportunity to air the issues that have been raised, and I thank Roseanna Cunningham for providing that opportunity.
In committee, I did not want to let this point go because the general populace's perception is that public interest in land is important. The problem is how to retain public interest in land and, having investigated the matter, I am clear that that cannot be done through the bill as it stands.
There is much confusion about the technical nature of some of that which relates to the rights of the Crown, which has a number of rights relating to land. Those rights are not only as the feudal superior, but are similar to the rights of Government in regard to the Succession (Scotland) Act 1964, which gives the right to the Crown to claim land when there is no heir to an estate. That can be done without the Crown being the paramount feudal superior.
The debate about the regalia minora and regalia majora is important. If one asks lawyers to agree about the matter, they cannot. They cannot agree whether the Crown has all its powers as a result of its prerogative, or as a result of its being the
It is important, for the avoidance of any doubt as to where the powers of the Crown lie, that there is a section in the bill that is an avoidance of doubt measure. I am not over the moon with the wording of amendment 13, but I accept that it is an avoidance of doubt measure.
Public interest in land is an important issue for Parliament. I hope that the minister will at least concede that we must have further debate about how we can enshrine the public interest in land, whether it is through planning law, environmental protection law or any other aspect of law.
The idea that anyone has absolute ownership of land is nonsense; aviation rights and other rights will interfere with ownership of the land. All that we will do with the bill is sweep away feudal rights. Many acts of Parliament will still interfere with anyone's absolute ownership of land.
I will make a final comment about the Black Cuillin—I am sure that it will not be the last word on that matter today—to illustrate the point about the public interest in land. There is some doubt over the title to the Black Cuillin. It is for groups who are involved to make the case. Should it be that MacLeod 29th clan chief of MacLeod does not have title to the Black Cuillin, the point is that it will revert back to the Crown, not as feudal superior, but because it owned it in the first place. It is important to have the debate and I am tempted to go down that road, but it is a red herring to say that we can retain public interest in land by supporting amendment 1.
I urge Parliament to support amendment 13. Let us have more debate about public interest in land, because it is important.
It is sad that this is the last time that Roseanna Cunningham will defend the interests of the Crown. I wonder if it is also the first time that she has promoted the interests of the Crown.
I am marginally surprised that Roseanna Cunningham has pursued this argument, given our discussions in the Justice and Home Affairs Committee. Robin Callander expressed the view that there is a tendency towards his belief that all land should be, in effect, in public ownership. That seems to cut across this whole aspect of the bill. We support that aspect, as we will show in offering our support for the bill at the end of the debate.
Robin Callander's argument was countered by the Scottish Law Commission, which was set the task of reforming feudal law by a Tory Government in 1991, and by Professor Rennie, as Jim Wallace mentioned.
After paying considerable attention to the comments that were made, the committee decided that retaining the Crown as paramount superior was the preferred way forward.
On public interest in land, Roseanna Cunningham talked about absolute ownership. We must examine the input of the Parliament and local authorities in the way that land is used. There is still an overriding authority from a public interest viewpoint, but ownership goes undisputed.
The Conservatives may well not support the land reform bill, but public interest will be very much enshrined in that bill; I am sure that the minister would endorse that. There is no doubt that planning law is established to look after public interest; that would be another means of enshrining it.
"the Commission no longer considered that 'as a matter of technique, it is necessary or desirable to preserve the Crown's paramount superiority in order to achieve the objectives set out'".
The Law Commission seems confident that the interests of the public, as well as the interests of individuals, have been looked after. Members of the Conservative party are persuaded that amendment 13, in the name of the minister, should receive our support, at the expense of amendments 1 and 37.
I will try to be brief, because I see members keeling over and eyes glazing as we get into the minutiae of this issue. After the Justice and Home Affairs Committee debated the bill in April, I received a helpful letter from Angus MacKay, in which he advised that the Executive's amendment was for the "avoidance of doubt". That is the problem—there is still doubt. It is buried in the second paragraph of his letter, in which he states:
"The general approach of the Bill is to treat the Crown like any other feudal superior."
There is the rub: the Crown is not like any other feudal superior, but is the ultimate superior. That means that we are dealing with a one-off, unique position.
There has been talk of the opinion that was given by Professor Rennie, but—I do not know whether it is in the red corner or the blue corner—I have Professor Gretton. I get quite excited about this stuff, but professors of conveyancing can knock even me into a glazed state. In the "Stair
"in feudalism, landownership and sovereignty coincided, so that the Crown sovereignty over Scotland and its ultimate tenurial superiority were the same thing, identical concept."
It is not correct to say that we are dealing with two clearly separate things—sovereign rights or regalia, and superior rights. We need to deal with the role of the Crown as ultimate superior.
I do not see why the Executive has difficulty with our amendment. The Executive's amendment states the obvious rights of the Crown. I confess that I cannot come up with a concrete example, but I know that there is a public interest for the Crown, as represented not by the monarch but by the Parliament and, ultimately, by the Executive. Amendment 37 makes it plain that those superior rights that are feudal—to charge feuduty, to create a new feudal estate and to enforce a feudal burden—are abolished for the ultimate superior. However, it continues
"nothing in this Act shall be taken to supersede or impair any other property rights or interests held by virtue of the ultimate superiority of the Crown".
The key word is ultimate. The Crown was once like God over land, with all its rights rolled up into one power. When we abolish feudal superiority, we must ensure that we do not abolish the Crown's ability to intervene on behalf of the public interest. I cannot understand why the Executive finds it difficult to accept the amendments, which reserve to the Parliament a right to represent and enforce the public interest.
The difficulty is that the amendments are legal nonsense, and have no substance whatever. The bill is meant to abolish the feudal system, but in my view, the amendments in the name of Roseanna Cunningham have nothing to do with the feudal system. They are intended to make a political point about the absolute ownership of land. That is a legitimate argument for the Parliament, but the amendments cannot sensibly form part of a bill that is intended to abolish the feudal system. Roseanna Cunningham may say that she does not want to do anything other than abolish the feudal system. In that context, what meaning does reserving the ultimate superiority for the public interest have?
My recollection of our discussion in committee is the same as Phil Gallie's. Professor Rennie said—in much nicer terms than I will—that what was being proposed was legal gobbledegook. I do not remember Roseanna Cunningham or anyone else arguing with him. He said that the idea of the Crown losing its feudal superiorities, but retaining a right in the public interest, had no meaning.
The public interest needs to be protected. It is protected by the democratic institutions—by
I repeat what Jim Wallace said to Roseanna Cunningham: give us an example of what the proposal means. Christine Grahame said that she could not think of one. None of us can think of one. Roseanna Cunningham told us that there are cases in the United States of America. I have no knowledge of the American legal system, but I cannot think of an argument that could be put up in this country to the effect that, as we cannot stop something bad happening, we will use the Crown's superiority in the public interest.
If we are to support the amendment, Roseanna Cunningham must answer Jim Wallace's question and supply an example—even a hypothetical one—in which the proposal would apply. If she cannot do that, it is an amendment with no substance in reality, as the minister said. I do not want that sort of thing to be included in any bill.
I refer Gordon Jackson to my comments about potential challenges under ECHR. Article 1 of ECHR talks about people's right to enjoy their property without interference and ensures compensation if that right is interfered with.
My concern is that we are laying ourselves wide open to challenges. Nowhere else will the basis on which the Parliament makes laws about the restrictions be stated explicitly. A challenge under ECHR would be upheld and—let us face it—the Executive's line on ECHR has been that it cannot predict where the challenges will come from.
I do not want to get involved in a boring legal argument, but my problem is that I cannot see how a challenge under ECHR would be answered by invoking the Crown's right to act in the public interest. The two things do not match.
I cannot for the life of me see the meaning of the amendment. I said that in committee; Professor Rennie also said it, and I see that Phil Gallie, too, is nodding, which is worrying. The amendment seems to have no substance in reality. The Executive amendment tidies up what needs to be tidied up, while the political amendments have no place in the legislation.
I wish to record that the Liberal Democrat party is not attracted to amendment 1 or 37 and will support neither. The public interest is not best protected by the proposals. We believe that the Crown works for the Crown, and it is not clear to us what supervisory or protective role it would play on behalf of the public interest.
In the politest of manners, Professor Rennie told the Justice and Home Affairs Committee that the
We believe that the public interest can best be served in the way that Jim Wallace has talked about: through legislation, local authorities and so on. We urge support for amendment 13, which clears up residual doubt.
I am not a lawyer, thankfully, and am therefore not qualified to comment on regalia minora or regalia majora. Nor do I have any interest in defending the feudal superiority of the Crown—quite the reverse, in fact. I am interested in the public interest and in the future public ownership of land. I note what Pauline McNeill said about the Crown's other rights, including the right to claim land if there is no heir to the ownership of that land.
I am also interested in the rights of the Parliament. If the Parliament decided to prohibit the sale of the Black Cuillin, or to use compulsory purchase to bring them into public ownership, could the private owner, free of the feudal restrictions of the Crown, appeal under ECHR on the grounds that the Parliament was acting beyond its powers in trying to stop them selling the Black Cuillin for £10 million? If so, there may be substance to amendment 37. However, if the Deputy Prime Minister—sorry, Deputy First Minister—can assure me that that is not the case, I am happy to support amendment 13.
We have here clashing views, which will not be resolved in this debate. However, I ask all members to keep hold of the comments that I made earlier. Ultimately, the debate is about where the public interest lies, and my answer to John McAllion's question is that once we have done away with an explicit ability to act in the public interest, the legislation will be open to challenge.
Everyone refers to planning legislation and so on, but until now, all the legislation that we have dealt with derives from the power of a Parliament that is, in itself, sovereign. However, as the Parliament is not sovereign, which we recognised, we must state explicitly the basis on which the Parliament acts. We need an explicit statement of that position, whether that is given in the Abolition of Feudal Tenure etc (Scotland) Bill or in any of the other land reform bills that are coming up. I would be happy if the minister were to reassure me that such explicit protection of public interest will be in the land reform bill. However, thus far, I have not heard that—I have heard nothing. We may have heard the arguments of one professor versus those of another professor, but where does the concept of the public interest lie if we do away
Division number 1
For: Adam, Brian, Campbell, Colin, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Russell, Michael, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, White, Ms Sandra
Against: Baillie, Jackie, Barrie, Scott, Brankin, Rhona, Brown, Robert, Canavan, Dennis, Craigie, Cathie, Davidson, Mr David, Douglas-Hamilton, Lord James, Eadie, Helen, Fergusson, Alex, Finnie, Ross, Galbraith, Mr Sam, Gallie, Phil, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Home Robertson, Mr John, Hughes, Janis, Jackson, Gordon, Jamieson, Cathy, Jenkins, Ian, Johnston, Nick, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLeish, Henry, McLetchie, David, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Tosh, Mr Murray, Wallace, Ben, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan, Young, John
These amendments deal with an issue that the Executive agreed to reconsider during stage 2. The Justice and Home Affairs Committee took the view that, if a former vassal chooses to pay his or her compensation for the loss of feuduty by instalments, he or she should nevertheless be obliged to pay off any outstanding balance if the house is sold. On that subject,
The continuation of instalments after the vassal has ceased to have any connection with his former house seemed to be an unnecessary complication for all parties. The Executive saw the force of that argument and agreed to produce another suggestion at stage 3, which is what amendment 21 does. It is the substantive amendment in this group, and the remaining Executive amendments are consequential. Amendment 21 provides that, if a former vassal sells his or her property after receiving the documentation from the superior offering them the instalment option, he or she will no longer have the option of paying by instalments. This amendment addresses the point that was made by the Justice and Home Affairs Committee, and I ask the Parliament to accept these Executive amendments.
Amendments 43, 44, 45 and 46 are essentially technical and relate to the explanatory note that is appended to the form of notice that is set out in schedule 2, which requires compensatory payment in ordinary cases of the extinction of feuduty.
I am happy to recommend that members accept amendment 48. That amendment is to the notice that will be sent to former vassals, offering them the option of paying compensation by instalments. Although the bill provides for the payment of those instalments on a six-monthly basis, the amendment would point out to vassals that, if they approached their superior, it might be possible to come to a different arrangement. In particular, some former vassals may prefer not to pay six-monthly, as it might be easier for them to budget on a monthly or even weekly basis. Euan Robson's concern about that issue derives from his long experience in the gas industry, which we are eager to learn from. We are happy to recognise that concern, and I hope that the Parliament will agree to amendment 48 as a helpful change to the bill.
I move amendment 20.
I welcome the minister's amendments, but express my regret that amendment 2, which was supported by Lyndsay McIntosh and Christine Grahame, was not accepted, principally on the basis that it seemed to cover all the points in the minister's amendments in simple language. I recognise the fact that, within the legal fraternity, there is a need to ensure that everything is kept fairly complicated. I understand
These amendments fall precisely into line with Tory Government policy going back to 1974, when a Tory Government started off the process of getting rid of the feudal system and the sums due through feudal payments. We very much welcome the instalment option that has been included in this bill, and we recognise that these amendments consolidate the situation in which the feu is cleared at the point of the sale of a premise. We welcome the minister's statements. He has listened to the Justice and Home Affairs Committee and we offer him our support.
We, too, welcome this group of amendments. It is important to emphasise that what they avoid is the possibility that people would sell their houses and then traipse off to other parts of the country while still paying instalments that were due under the previous arrangement. Without the amendments, a situation could arise in which folk all over the country might have long-running trails of due instalments behind them. That would be a bizarre situation to get ourselves into if what provoked that was the sale of a house that released the money to pay off the total. Despite Phil Gallie's comment about the amendment's complicated language, it is really a tidy-up provision for the whole system, and I commend the minister for introducing it.
Amendment 20 agreed to.
Amendments 21 to 23 moved—[Mr Jim Wallace]—and agreed to.
Section 11—Service under section 8(1)
Very briefly, amendment 24 simply removes a phrase that should have been deleted when section 11 was being amended with section 35 at stage 2 and makes the wording of the first subsection in both sections consistent. Both subsections relate to the sending of documents claiming compensation by registered post or recorded delivery. As the amendment is merely technical, I hope that members will accept it.
I move amendment 24.
Amendment 24 agreed to.
Section 16—Extinction of superior's rights
Amendment 3 deletes section 16(2)(c), which creates a retrospective situation for court judgments. The Law Society of Scotland has raised concerns about that matter, and although I do not always agree with that organisation on such issues, I feel that there must be some consistency. The minister himself has always appeared to oppose retrospective law making.
As it stands, the bill removes the superior's rights to enforce a decree that has previously been granted in his favour. I seek the minister's guidance about why, in this case, he advocates retrospective annulment of a court decision and ask him to cite examples of previous similar actions. Does he now think that retrospective legislation is fair, and does this section set a precedent? I suspect that, given those thoughts, he might well decide to accept my amendment.
I move amendment 3.
I support Phil Gallie's amendment, because we all know the dangers of retrospective legislation. For example, someone who has reached the stage of receiving a judgment and an award of expenses and of having the account taxed will incur considerable expense if the decree is reduced. Will someone in such a situation receive any compensation? As the issue might have ECHR implications, I seek the minister's assurance that he has considered that possibility.
Although I respect the amendments in the spirit in which they have been moved, I ask the Parliament to reject them. Amendment 3 would perpetuate court decrees in relation to feudal burdens beyond the appointed day of abolition, even though the burden itself had been abolished on that day. I should tell both Phil Gallie and Christine Grahame that decrees involving money will not be affected by section 16. Furthermore, the section will not prevent a superior who established his claim for damages on a debt recovering money from the former vassal.
Under the general law, an obligation, once extinguished, is extinguished for all purposes, which means that, when feudal burdens are abolished under the bill on the appointed day of abolition, it should therefore no longer be possible to sue in respect of past breaches. By the same token, even if a decree has been issued by the court before the appointed day on a burden that is extinguished on the appointed day, the feudal burden no longer exists and its effect should cease on that day. Mr Gallie asks whether the section sets a precedent; however, the matter is specifically related to our unusual, but very important, policy decision to abolish the feudal system from an appointed day. If the burden is extinguished on that day, its effect should cease on that day.
That does not pertain for damages, but what about expenses that would accompany an order of the court? Substantial expenses may be awarded. Has the Executive considered that and, if so, what view has been
ECHR is given serious consideration at every point, given our responsibilities as a Parliament and as an Executive of ensuring ECHR compliance. I am sure that if I keep talking long enough in response to the amendment, I might well be able to give a more definitive answer on the specific question of expenses.
It would be intolerable if a superior were able to continue to enforce a burden after abolition by means of a court decree, even though that burden had already been extinguished. A decree for interdict preventing a vassal from breaching a feudal burden is meaningless if it relates to a legal obligation that no longer exists. For example, if prior to feudal abolition a superior could prevent his vassal from building on his land and before the appointed day obtains a court order to prevent him from building, there does not appear to be a good reason why the court order should not fall on the appointed day if the former superior cannot save the burden.
As those who have studied the bill know, it includes provisions on the procedures for saving burdens. It would be contrary to the policy of the bill if every superior in Scotland could go to court the day before the appointed day to try to get court orders to save burdens by the back door. There are procedures for saving burdens.
I appreciate what the minister is saying, but I am concerned that, somewhere along the line, someone might have abused a feudal requirement and their superior may have taken them to court and got a judgment—perhaps, as Christine Grahame suggested, with considerable outlay and an onward financial commitment. That does not appear to be covered in the bill and I would like the minister to address that point.
As I have already suggested, section 16 will not prevent a superior, with an established claim for damages or a debt, from recovering money. I am happy to confirm that an award of expenses will be a decree for the payment of money and therefore would continue to be enforceable even beyond the appointed day. It would run totally counter to the idea of abolishing the feudal system if an interdict that prohibited a vassal from carrying out a particular operation on his or her land continued when there was no subsisting legal obligation.
I do not think that that assists us with the decree of expenses. The section reads:
"any decree . . . pronounced in proceedings for such enforcement".
A decree for expenses would be in those
As Christine Grahame well knows, a decree for expenses is a decree for the payment of money and that is preserved. We are discussing decrees of interdict or decrees ad factum praestandum. Our intention is that those should no longer subsist after the appointed day. However, decrees for the award of expenses, being payments of money, should continue to subsist.
As I have said, to allow a superior to continue to benefit from a burden that has ceased to be enforceable would be against the spirit and the policy intention that underlies the bill and to which all parties subscribe. I therefore ask the member to withdraw the amendment. Failing that, I ask Parliament to reject it.
Division number 2
For: Adam, Brian, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Gallie, Phil, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Ingram, Mr Adam, Johnston, Nick, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McIntosh, Mrs Lyndsay, McLeod, Fiona, McLetchie, David, Monteith, Mr Brian, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Russell, Michael, Scanlon, Mary, Scott, John, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, Ullrich, Kay, White, Ms Sandra, Young, John
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Canavan, Dennis, Chisholm, Malcolm, Eadie, Helen, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Grant, Rhoda, Gray, Iain, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
I will not move 27, but will speak to amendments 25 and 28 and then to amendment 30, as they seek to achieve the same aim in two slightly different ways.
The purpose of my amendments, which have already been the subject of some discussion in committee, is to differentiate between urban and rural land. At committee, the Deputy Minister for Justice accepted that the 100 m rule was arbitrary and that, being so, its application to rural land might not be satisfactory. I would argue that some differentiation is required to satisfy the differences between rural, particularly agricultural, land and urban land.
Maintaining some burdens within 100 m of a designated tenement might work in urban areas, although the figure of 100 m is arbitrary for urban conditions as well, but 100 m is no great distance on agricultural farm land or estates. Amendments 25 and 28 seek to achieve differentiation by describing tenements as being within
"a city, town, village or other predominantly built up area" and by allowing for the recording of a different distance. That may be a difficult manner in which to differentiate in legal terms, but it is important that we make some attempt to do so at this stage.
Amendment 30 is a similar argument dressed up in a different manner. I am grateful to Maureen Macmillan for raising this issue. She will recognise that my amendment contains two of the three paragraphs that she previously proposed at stage 2. The effect of amendment 30 would be to preserve burdens affecting areas of agricultural land—or what was once agricultural land—for the benefit of adjoining areas of agricultural land.
Within agricultural uses and rural land uses, burdens could take on an entirely different meaning. On urban land, one might find amenities, such as back gardens or buildings of a certain design that have conservation value, being preserved for the benefit of communities. In rural settings, the burdens that we may wish to preserve might affect people's livelihoods and how they go about their business, protecting livestock and ensuring forestry or other rights.
My amendments attempt to bring about some acceptance by the Executive that the 100 m rule—or the 110 yd rule, as some of us might call it—is arbitrary. The Executive should differentiate between, and so recognise, the different lifestyles and commercial activity on the two sectors of land,
I move amendment 25.
As Brian Monteith said, I have had concerns about how the bill will affect agricultural communities. It removes a protection from livestock farmers who, in the past, when they granted a feu for a house on the edge of their farm, would perhaps add a feudal burden to forbid the keeping of dogs so that they would not have the worry of livestock being harassed or killed.
As the minister admitted, this act attempts to protect buildings, but the land itself may sometimes need to be protected. If the land cannot be protected, farmers may be reluctant to release land in rural areas for badly needed rural housing. However, the minister has written to me about this matter, and I accept that it would be difficult to make special provisions at this point for agricultural burdens, as it would open the door to demands from all sorts of special interests.
I accept that to have differing distances between former superior and former vassals applying in urban and in rural areas could lead to the system collapsing in a confusion of definitions about what is an urban area and what is a rural one. I understand, too, that the Executive is committed to re-examining the matter in the context of the Scottish Law Commission's work on real burdens and the representations that it has received on these points.
I understand that part 4 of the bill will not commence until the title conditions bill has been enacted and that the whole issue will be considered again in relation to that bill. Again, I seek the minister's assurance on that point. If I get that assurance, I will not support these amendments.
I will not support the amendments lodged by Mr Monteith. SNP members sympathise with and advance some of the arguments that Maureen Macmillan has mentioned, and regard them as important. However, the purpose of section 17 is to set out those circumstances in which a superior can continue to enforce title conditions, although he will become a former superior. The legal phrase is that he will be the owner of a dominant tenement.
The effect of Mr Monteith's amendment would be to extend the 100 m rule to 1 km. A former superior would therefore be able to apply, using the notice procedure, to continue the condition in force if he had a habitation or place of resort within 1 km rather than within 100 m. That would extend the power of the former feudal superior, but the purpose of the bill is to try to remove and abolish the feudal system. For that reason, we oppose in
I congratulate Brian Monteith on introducing a definition of the difference between the urban scene and the rural one. Such a definition has been lacking in this debate. However, I am disappointed in Fergus Ewing's comments with respect to the kilometre in a rural setting. I would have thought that he, more than most, coming from a north-east rural constituency, would have recognised the differences between rural communities and cities, towns or even villages, where domestic residences tend to be clumped up against one another. In the rural scene, distances between buildings can be quite substantial. It surprises me that Fergus has gone down that line.
I am not sure about our position on Roseanna Cunningham's amendment 29, but it would seem to be an amendment that we should support, given that it introduces the agricultural aspect—an important issue. We urge support for Brian Monteith's amendments. Once again, we urge the minister to take benefit from a definition that Brian has advanced, when few others have been prepared to do the same.
I am a bit confused by all the amendments. I do not support Brian Monteith's amendments, partly on the basis of the former superior's rights in retention. However, I have sympathy with the arguments put forward at committee about agricultural land. I should take this opportunity to say that I will not move amendment 29. There is a specific reason for that: on rereading the section, I can see that, by the definition of land in that section, it would be referring to the land that is the dominant tenement. That would be increasing the former superior's rights. I was caught out myself by that.
I am content that a later amendment will deal with the problem of the arbitrary nature of the 100 m rule, which was addressed by Maureen Macmillan. We all tried—including, to be fair, the Executive—to think of a way round this. Fergus Ewing's solution is the one that probably gets closest, because it simply does away with an arbitrary distance and uses other tests. That is a more proper way to proceed.
As Brian Monteith has said, this was discussed in committee at stage 2. He says that 100 m is an arbitrary figure—arbitrary it may be, but it needs to be set at some sort of figure.
My problem with the proposed amendment is
This is an interesting group of amendments. They are all concerned with the general subject of neighbourhood burdens; indeed, they were matters that were considered by the committee. I hope that members will bear with me as I go through them carefully, because they raise important issues.
I remind members that the conditions for a neighbour burden, which are set out in the bill, are threefold. First, the dominant tenement, the land that was owned by the superior, must have a permanent building on it. Secondly, that building must be within 100 m of the servient tenement. Thirdly, the building in question must be in use for human habitation or for human resort.
The idea behind neighbour burdens is that amenity, and in particular the amenity of a house or other place of human resort, should be protected. It would have been possible to have called neighbour burdens amenity burdens, but there has been no attempt to define amenity. The thinking behind it is that distance and amenity are interrelated. The distance specified, of 100 m, will generally be sufficient of itself to cover amenity interests.
Amendment 31 seeks to insert a test of amenity. It is not enough that the building to be protected is 100 m away from the servient tenement—or contiguous with its boundary, as Fergus Ewing would have it; it is also necessary that the burden exists specifically to protect the amenity of the building, but the amendment is silent on what amenity means. What is the test, and who is to carry it out? I simply do not believe that it would be practical to apply this amendment.
Amendments 25 to 28 strike at the second criterion for a neighbourhood burden, which is the 100 m rule. Amendment 26 would remove the 100 m rule and substitute a requirement that two areas of land—the dominant and servient tenements—must be contiguous. I can see the attraction in that. As the bill stands, there is a bluntness about the 100 m rule and, as my colleague Angus MacKay accepted in committee, there is a degree of arbitrariness about it.
One can readily see that if there are intervening
On the other hand, amendment 26 might widen the effect of the provisions unexpectedly. Some houses are close to the boundaries of their own land, others are not. If the amendment were accepted, a superior living in a house with a large garden might be able to save all their burdens on the land that bounds it. If the garden were on an estate, the land in question could be huge. That would be a lairds charter. I cannot think that that is what Fergus Ewing intended, but I fear that that would be the effect of his amendment.
Amendments 25, 27 and 28 are proposed by Brian Monteith.
Then I will consider amendments 25 and 28, which are also concerned with distance and are aimed at drawing out the distinction between the operation of the bill in an urban setting and in a rural context. They seek to increase the limit on neighbour burdens from 100 m to 500 m in urban areas, and from 100 m to 1 km in rural areas.
In relation to distance criteria, I have said before that any limit—wherever the line is drawn—is in some respects arbitrary. We gave this matter considerable thought and took the view that 100 m was the best figure in the circumstances. I take the view that the figures proposed in the amendments are too high. Stating on the face of the bill that the limit in urban areas should be 500 m would give the wrong impression. A burden could relate to properties that are several streets away and a superior might have no interest in enforcing it. Similar arguments could apply to a distance of 1 km in rural areas, where the burdened land could be a considerable distance away. The amendments are not credible.
A distinction between town and country is a concept with which I have some sympathy. We all instinctively agree that because distances between dwelling houses are much greater in the country than in the town, a householder in the country could have more interest in a burden that affects land that is a greater distance from his home. My difficulty, as Scott Barrie echoed, is that the amendments do not attempt to define terms.
The phrase used is:
"a city, town, village or other predominantly built up area".
No one will dispute that where we are at the moment is a built-up area, but is Arthur's Seat a built-up area? What about the green belt on the edge of a city? Where would boundaries fall? Those are practical issues. I appreciate the sentiment that underlies these amendments, but I simply do not believe that they would work.
Maureen Macmillan spoke about a letter she received from Mr Wallace, in which he seemed to express concerns about those issues. It seems that the minister is now saying, "Yes, I do have concerns but, irrespective, I am still going to press ahead with this bill." What will the minister do to address the concerns that he has raised?
Some sort of agricultural burden has been suggested. Maureen Macmillan raised this matter at stage 2 when she moved an amendment. Indeed she explained then, as she has done to Parliament today, that it would be possible for a farmer to feu off a piece of land and put it on a burden that would be aimed at protecting his business. We are dealing with the abolition of feudal burdens. It would still be possible when selling off land in an ordinary disposition—which is not a feudal disposition—to establish a real burden by means of disposition. So as far as the future is concerned, that particular concern does not arise.
Real burdens have been constituted by a simple disposition in some cases and by a feudal disposition in others. Very often it depended on the practice of the solicitor—on whether he or she established the burden by means of a feudal charter. That is why some burdens are being preserved.
Is not the point of principle that gives rise to the difficulty here that section 17 allows feudal superiors, by a mechanism of a notice, to preserve in force conditions and the right to enforce those conditions in certain circumstances? As I heard the Minister for Justice discuss on the radio this morning, that leads to the problem that a homeowner, while selling his or her property, may suddenly find that he or she is being asked to pay for a minute of waiver. Sometimes they are asked for a few hundred pounds; sometimes they are asked for a lot more. That
That is the case. The kind of circumstance that many people have criticised is when a superior emerges from nowhere and people have not previously heard of them. By having the 100 m rule, the chances are strong that the owner of the servient tenement will know the owner of the dominant tenement. The fact that it is a neighbour burden suggests that a very clear and immediate interest is being protected. Outwith the 100 m it would be possible to apply to the Lands Tribunal, but I accept that doing so could be troublesome. We accept those points.
Also relevant are a number of points that have been raised in different circumstances by commercial developers. They have suggested that special circumstances should apply to new commercial developments. They first put their arguments to the Law Commission in the context of its discussion paper on real burdens and have argued that in future they should be allowed to place burdens or title conditions on land that they are developing and, as a corollary, that they should be able to preserve existing feudal burdens of a similar kind. What we call agricultural burdens in the countryside might be thought of as commercial burdens in urban areas.
Because the Law Commission saw that those arguments were substantial and needed to be properly assessed, we decided not to commence part 4 until we can consider its recommendations on title conditions. I emphasis that part 4 will not be commenced until Parliament has had a proper opportunity to consider the recommendations in the title conditions bill. This is important. The conditions by which land is held is significant; we want to think them through carefully and with due attention. The forthcoming consultation on title conditions will allow us to do that. Many points have arisen as a result of the Law Commission's consultation. The Executive will want to consult further once we have its report.
I do not yet have the Law Commission report. The matters to which I have referred have been raised as part of the
As there will be further consultation on these important matters, I invite the members who have lodged the amendments in this group to consider not pressing them.
Division number 3
For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Russell, Michael, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, White, Ms Sandra
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Craigie, Cathie, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Gallie, Phil, Goldie, Miss Annabel, Johnston, Nick, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Scanlon, Mary, Tosh, Mr Murray, Wallace, Ben
Division number 4
For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Russell, Michael, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, White, Ms Sandra
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Scott, Tavish, Smith, Iain, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Gallie, Phil, Goldie, Miss Annabel, Johnston, Nick, Johnstone, Alex, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Scanlon, Mary, Tosh, Mr Murray, Young, John
I should begin with a declaration of interest as a solicitor. However, if amendment 32 is agreed to, it will reduce the work for solicitors, as well as make their lives a bit simpler.
Amendment 32 seeks to clarify that, under section 19, it would not be possible for a superior who applies to the Lands Tribunal for Scotland to argue that there has been a substantial loss or disadvantage, or that that loss or disadvantage has been constituted by the loss of the capacity to receive a payment under the existing system. Payment is frequently made as a matter of custom by feuars, who are often advised by lawyers that it would cost a great deal of money—£500 or £1,000—to apply to the Lands Tribunal.
The person concerned is routinely advised not to go to the Lands Tribunal, but instead to make the payment to the superior to get a minute of waiver.
That saves hassle and doubt and removes the problem of homeowners having to take on often wealthy superiors at the Lands Tribunal.
I can give one example that might make the position clear, although this is a technical debate. There are often conditions of title that prevent a homeowner from selling off a third or half an acre, perhaps to allow another house to be built. Farmers or even suburban homeowners may want to sell off part of their plot. They are often advised by their solicitor that there is a condition that prevents them from doing so without permission of the feudal superior. Not infrequently, the superior asks for payment of a substantial amount of money for that purpose. That is the sort of situation that I think we all wish to discourage.
Does Fergus Ewing acknowledge that some of these rapacious superiors are councils, including councils run by the SNP and the Labour party? As councils are under no obligation to extract payments for permissions for developments that they have already approved as a planning authority, they are extorting money from their citizens. Will he condemn that practice and ask councils to desist voluntarily before this bill becomes law?
I am not sure that David McLetchie could find such examples relating to the one that I am talking about. I am bound to reflect, as I did earlier when Mr Gallie said that the Tories started the process of abolishing the feudal system in 1974, that, thereafter, the Tories seemed to be rather slow starters. In the ensuing years, nothing whatever happened. If Mr McLetchie is now arguing that the Tories accept that amendment 32 should be supported, I would of course welcome that support and that change of heart.
With this amendment, I am suggesting that the artificial rights of property that superiors have enjoyed should come to an end. It should be explicit in the bill that the custom that has developed of superiors' being able to extract payments—often substantial payments—should not be used before the Lands Tribunal as an argument that the test of substantial loss and disadvantage has been met.
I move amendment 32.
I have some sympathy with Fergus Ewing on this amendment and align myself with the comments of my colleague David McLetchie, who emphasised the activities of Perth and Kinross Council and City of Edinburgh Council, in whose areas things such as conservatories and house extensions are, in effect, charged for twice.
Phil Gallie leaves those decisions to councillors. Our party now accepts, and believes in, devolution. Councillors have their own responsibilities and must make up their own minds on such matters.
We have listened to Fergus Ewing. We are also well aware of the many abuses in the private sector, such as when a solicitor's letter arrives at a group of houses that are under one feudal title holder. The letter suggests that, for payments of £200 or £300, all previous moves away from feu conditions can be excluded from any consideration by the superior. We recognise that Fergus's amendment would cover such cases and ensure that no further abuses occur.
Fergus Ewing said that Tories were slow starters in bringing about the end of the feudal system. It is with pride that we note that—without any pain or major aggravation—almost 80 per cent of feudal burdens in Scotland have now disappeared. Some success has come of the moves made in 1974. We also remember that, in 1991, the Law Commission was tasked by the Conservative Government to bring about the ends that are aimed for in this bill. We will talk about that later, no doubt. For the moment, Mr Ewing has our sympathy with amendment 32.
Fergus Ewing will, I think, be pleased to know that I agree with the sentiments behind his amendment; indeed, there is widespread agreement on the amendment. The section that he seeks to amend deals with cases heard by the Lands Tribunal in which the superior seeks to save a burden that, under the bill, would otherwise be lost. The tribunal would be able to find in the superior's favour only if it were satisfied that the superior would suffer substantial loss of disadvantage as owner—not as superior—of the land if the burden were to disappear.
The test that Fergus Ewing mentions is one basis on which compensation can be awarded to a superior under the current law when a vassal seeks to have a burden discharged under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970. I am sure that it is a test with which Mr Ewing is familiar—he will know that it is a test that the tribunal is used to applying. The tribunal has set its face firmly against awards of
I believe that the amendment is unnecessary, as the bill already provides for what Mr Ewing is seeking and what we support. A strict interpretation of the amendment could lead to difficulties that were not intended. It could have the unfortunate effect that if the superior admitted that, prior to the feudal abolition, he would have been able to charge for the waiver of the burden, he might then be barred from saving the burden under section 19, because the amendment suggests that he cannot, in those circumstances, meet the test of substantial loss or disadvantage that the section requires.
I am sure that that is not quite what Fergus Ewing intended. The legitimate and reasonable concern that he raised is met by the scheme. An arrangement has been made for taking such matters to the Lands Tribunal for Scotland, so I hope that he will seek agreement to withdraw the amendment.
I have listened to what the minister said with great care, but I am not sure that he provided a full explanation of the possible interpretation of my amendment. I am not persuaded that the bill meets my concern and I suggest to the minister that former vassals will continue to be in a weak position. They will also continue to have to ask their former superior—as future owner of the dominant tenement—to waive conditions and they will have to deal with tests of substantial loss or disadvantage. I ask Parliament to make it clear that, when that test is being applied to superiors, they should not be able to argue that they were formerly in receipt of £500 or £1,000 but now have lost that advantage. We are trying to remove such advantage. That is what the amendment would do—let me say, with respect to the minister, that that is why I moved it.
Division number 5
For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Johnston, Nick, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McIntosh, Mrs Lyndsay, McLeod, Fiona, McLetchie, David, Monteith, Mr Brian, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Scanlon, Mary, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, Ullrich, Kay, Wallace, Ben, White, Ms Sandra, Young, John
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Ferguson, Patricia, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacLean, Kate, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Section 24 refers back to section 22. At present, section 24 does not mention all circumstances in which land may become a dominant tenement following feudal abolition. The purpose of the amendment is to make section 24 consistent with section 22 by including the words
"land to which services are provided" in the list of interests that are capable of becoming a dominant tenement. It is a drafting amendment, which I hope Parliament will readily agree to.
I move amendment 5.
Amendment 5 agreed to
Section 27—Enforcement of conservation burden
Again, these are technical amendments. They make it clear that, if a conservation body has registered a notice preserving the right to enforce a conservation burden after the appointed day of abolition, but has conveyed the superiority to another conservation body or to Scottish ministers prior to the appointed day, the successor conservation
I move amendment 33.
Amendment 33 agreed to.
Amendments 34 and 35 moved—[Mr Jim Wallace]—and agreed to.
Section 33—Limited transmissibility of right to claim compensation
Following further consideration of the views expressed by the Justice and Home Affairs Committee at stage 2, the Executive has accepted that a reserved claim to compensation is a form of property like any other, so it should be able to be bought and sold freely. Amendment 6 gives effect to that change.
The other amendments in this grouping are consequential on that change. Amendment 7 makes it clear that it will not only be the person who registered the notice who can claim compensation, but anyone who subsequently obtains a right to all or part of that claim.
Amendments 8 and 9 are consequential on amendment 10, which provides that an assignee will not be able to recover any more compensation than the person who assigned the reserved right to him could. Section 36(3) provides that any entitlement of the claimant to recover the development value should be taken into account when working out the amount of compensation that can be claimed. It is designed to avoid double counting; amendment 10 should ensure that that principle will not be avoided by the simple act of an assignation of the right to claim compensation.
Amendment 11 sets out the manner in which a reserved right to claim compensation can be assigned to the person entitled to it. In terms of the amendment, an assignation is effected by execution and registration of the assignation. The assignation will be effective on registration, because that amounts to intimation of the assignation. An appropriate form of assignation is provided for in schedule 9. The amendment also makes it clear that it should be possible to assign only part of the right to claim. An assignation of a part of a claim must be expressed as a proportion, or a percentage, of each individual claim that must be made under section 34.
Amendments 15, 16, 17 and 18 make appropriate amendments to schedule 9 to allow for assignation as well as discharge or restriction of reserved rights to claim compensation. Amendment 17 provides a form where only a percentage of each claim is being assigned. Amendment 18 stipulates that links of titles should be set out if the party assigning the right is not the party with the registered entitlement to the right to claim compensation.
As I indicated, the purpose of these amendments was to meet concerns that were raised at stage 2. I hope that they will commend themselves to the Parliament.
I move amendment 6.
The Conservatives recognise the importance of the amendments. We welcome the fact that the minister seems to have listened to comments made by the Justice and Home Affairs Committee and others, such as the Royal Institution of Chartered Surveyors.
We want to achieve the maximum use of land, and the amendments will encourage people to sell land knowing that, dependent on development, they could receive compensation in the longer term. Overall, we feel that there are benefits and we compliment the minister.
I welcome the welcome.
Amendment 6 agreed to.
Section 34—Claiming compensation
Amendment 7 moved—[Mr Jim Wallace]—and agreed to.
Section 36—Amount of compensation
Amendments 8 to 10 moved—[Mr Jim Wallace]—and agreed to.
Section 38—Discharge, or restriction, of reserved right to claim compensation
Amendment 11 moved—[Mr Jim Wallace]—and agreed to.
Section 56—Crown application
Amendment 37 not moved.
Amendment 13 moved—[Mr Jim Wallace]—and agreed to.
Section 65—Prohibition on leases for periods of more than 175 years
In committee, we managed to raise the limit on the maximum length of leases from 125 years to 175 years. The arguments for doing that were well rehearsed at that time. Concerns remain about the maximum length of leases. People may be considering investing a considerable amount of money in an area of land, perhaps with major industry. We must take on board current environmental law about clean-up both before and after such investment. We are looking to maximise job opportunities and the use of land. I note that the Royal Institution of Chartered Surveyors has expressed anxiety about the effect that the time limit on leases could have on the use of brown-field sites. It does not seem too much to suggest that a further 50 years could make the difference when we are dealing with substantial levels of investment. I ask the minister to think again on this issue.
I move amendment 39.
I support the amendment in the name of Phil Gallie. I thought that it would be opportune to ask the minister whether during consultation on the proposed title conditions bill, which would review agricultural and commercial burdens, it might be possible to consider the time limit that is proposed in this amendment. The minister may want to stick with 175 years, but the title conditions bill may give us an opportunity to reconsider that. I would welcome hearing his views on that.
As Mr Gallie acknowledged, Angus MacKay dealt with a number of these issues at stage 2, when he responded to amendments on the proposed length of non-residential leases. The Scottish Law Commission believes that when the feudal system is abolished there may be pressure on owners to lease. It has argued—and we accept the argument—that it will be necessary to place a limit on the length of leases, so that perpetual leasehold tenure does not become the norm in Scotland, as it has done in England.
The issue of long leases is relevant mainly to the commercial property sector, as there is already a restriction on long leases for residential property beyond 20 years. At the moment, there is no
As I said, at stage 2 the Executive lodged an amendment to increase the limit from 125 years to 175 years. Mr Gallie's amendment seeks to raise the limit by another 50 years. At stage 2, Mr Monteith attempted to amend the bill by increasing the limit to 999 years, which would be wholly unacceptable and would mean, in effect, that there was no limit on the length of leases—I suspect that that is what he really wants. We do not want to replace the feudal system with a system of leasehold tenure that would develop the same kinds of defects over the years.
The Justice and Home Affairs Committee accepted the arguments that the Law Commission and the minister put forward with respect to the undesirability of transferring the onus on to long leases. The minister must accept the assurance that that is not the objective behind the amendment. The amendment is based on our belief that it is important not to lose out on investment and business opportunity. That is the reason why we seek to raise the limit by 50 years.
To be fair, I was talking about an amendment that Mr Monteith lodged in committee. Mr Gallie is right to stress the importance of ensuring that legitimate commercial development is not stifled. In all these matters, judgments must be made. Having listened to representations from many sources, particularly in the commercial sector, we judge that 175 years strikes the right balance between ensuring the opportunity for commercial development and not allowing the feudal system to recreate itself or come in by the back door.
The objective behind Mr Gallie's case is shared by members throughout the Parliament but the question is one of balance. The Executive feels that the limit of 175 years is acceptable and would not place the commercial market at a competitive disadvantage. Mr Monteith asks whether we might return to this issue later, but I do not want to give
On the subject of considering things again, will the minister put on the record some comments about the Blairgowrie leases? I have raised the matter with him before. I was pleased to read in the Official Report of the Justice and Home Affairs Committee of 29 March that the Deputy Minister for Justice said that the Law Commission would consider some of the outstanding issues relating to the Blairgowrie leases, which is an important issue for the community that I represent.
I recall that I corresponded with Mr Swinney on that matter. If I promised that the matter would be considered again, I would adhere to that. I will write to him again, as he has raised the matter in the context of this debate.
I ask Mr Gallie not to press his amendment, as I do not believe that there is justification for further extension of the limit for non-residential leases.
Amendment 14 is simply a drafting change that Christine Grahame asked the Executive to make at stage 2. Although we believe that the words "operative" and "subsisting" have the same meaning in the context of the provision, we are happy—in the spirit of co-operation—to make that change.
The minister makes the point that we can keep our eye on the issue well into the future. If the time scale that the Executive proposes causes problems, I am sure that Conservative members will raise the matter again, just as the Executive might. Given that we have plenty of time over the next 225 years, I will not press the amendment.
Amendment 39, by agreement, withdrawn.
Amendment 40 not moved.
FORM OF NOTICE REQUIRING COMPENSATORY PAYMENT ETC: CUMULO FEUDUTY
Amendment 41 moved—[Mr Jim Wallace]—and agreed to.
FORM OF NOTICE REQUIRING COMPENSATORY PAYMENT ETC: ORDINARY CASE
Amendments 42 to 46 moved—[Mr Jim Wallace]—and agreed to.
FORM OF INSTALMENT DOCUMENT
Amendment 47 moved—[Mr Jim Wallace]—and agreed to.
Amendment 48 moved—[Euan Robson]—and agreed to.
Amendments 15 to 18 moved—[Mr Jim Wallace]—and agreed to.
Amendment 49 not moved.