Abolition of Feudal Tenure etc (Scotland) Bill

– in the Scottish Parliament at 4:30 pm on 3rd May 2000.

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Photo of George Reid George Reid Scottish National Party 4:30 pm, 3rd May 2000

The next item of business is a debate on motion S1M-771, in the name of Mr Jim Wallace, seeking agreement that the Abolition of Feudal Tenure etc (Scotland) Bill be passed. Members who wish to speak in the debate should press their request-to-speak buttons now.

Photo of Jim Wallace Jim Wallace Liberal Democrat 4:36 pm, 3rd May 2000

As I indicated during the stage 1 debate last December, I believe that the Abolition of Feudal Tenure etc (Scotland) Bill is an historic piece of legislation, as it abolishes 800 years of feudal tenure in Scotland. The bill will ensure that the vast majority of householders in Scotland will enjoy simple, outright ownership of their property, without being subjected to the whims of a possibly remote superior, perhaps of whom they have never heard and whose only real interest in imposing conditions on property is financial. Feudal superiorities will disappear, along with all other outdated facets of the feudal system.

This reform of property law is long overdue, but it is the first step in a series of reforms that will modernise and greatly simplify Scottish land law. To address a point made by Pauline McNeill during our debate today on the first group of amendments, I agree that it is important to continue to debate these issues and to make a contribution to much-needed reform of Scotland's land law.

The Abolition of Feudal Tenure etc (Scotland) Bill will be followed by a bill on title conditions, which, I hope, will rationalise and modernise the law relating to non-feudal burdens and conditions on property. We also intend to reform the law of the tenement. The Scottish Law Commission is about to embark on work to consider aspects of residential leasehold tenure in Scotland and we hope that, in time, it will be possible to convert properties held under those types of tenure to the simple ownership envisaged in the Abolition of Feudal Tenure etc (Scotland) Bill. It is also important that I acknowledge the bill on leasehold casualties that Adam Ingram is to introduce. That bill enjoys the support of the Executive and, I am sure, wider support throughout the Parliament.

I will take a moment to address the concerns expressed in the media and by some land reform groups that absolute ownership of land is being given to large estate owners who will be able to ride roughshod over the wishes of local people. I believe that that belief is mistaken—we have debated fully today the role that the Crown currently performs. It is also important that I state that amendments to the Abolition of Feudal Tenure etc (Scotland) Bill have been agreed, including in our debate today, to protect areas of law where the Crown has a role to play in protecting the public interest in, for example, navigation, moorings, the foreshore and the sea bed. I believe that the suggestion that anything else is being lost is based on a misconceived notion.

This reform has been a long time coming. The first proposals were published in the 1960s, although I am sure that demands for the abolition of feudal tenure date from much earlier than that. I remember my parents telling me once that they were about to pay their feuduty, but I did not have a clue what that meant. When they explained, I simply could not understand why, when they thought that they owned their house, it was possible for someone to come along and to demand money from them.

It is unfortunate that the first reforms of the feudal system, which were included in the Conveyancing and Feudal Reform (Scotland) Act 1970 and the Land Tenure Reform (Scotland) Act 1974, were not followed up as the Governments of the day had intended, and that no progress was made for nearly 20 years.

We are particularly indebted to the Scottish Law Commission, which has tackled an enormous task with great thoroughness, ingenuity and dedication. I also wish to pay tribute to the Justice and Home Affairs Committee, which has worked hard in examining the detail of what Parliament recognises is a complex and technical piece of law reform. I am pleased that a number of the amendments lodged by members of that committee at stage 2 have been given effect by the Executive at stage 3, and I hope that members of the committee believe that the bill has been improved as a result.

Many other individuals and bodies have added their comments as part of the consultation exercise, and we are grateful for the contribution that they have made. I thank officials in the justice department for their very detailed examination and consideration of the bill, and for the assistance that they have given while the bill has been prepared and put before the Parliament.

We are approaching the first anniversary of this Parliament. Many of us claimed that it would do things that Westminster would never get around to doing, one of which was to abolish our system of feudal tenure. I feel genuinely proud that, in its first year, our Scottish Parliament has been able to deal with this issue and remove from Scottish property law a system that is outdated and archaic and which, at times, has been abused in an oppressive way. That is a tribute to members from all parties who have made a constructive contribution to the process, and it shows that this Parliament can work and is working.

It is with honour that I move,

That the Parliament agrees that the Abolition of Feudal Tenure etc (Scotland) Bill be passed.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 4:41 pm, 3rd May 2000

Now that it is clear to everyone what an exciting time the Justice and Home Affairs Committee has, there will no doubt be a queue of members wanting to join the committee for the delights that are in store for us—which have been ably outlined by the minister.

As the committee convener, I record my appreciation of the work of the members of the committee. Only a handful have a legal background, but those of us who have a legal background were not much better off when we came to deal with some of the issues that arose during our scrutiny of the bill. Needless to say, my thanks are also due to the clerks, who shared the burden with us. The clerks had to undertake a great deal of work behind the scenes to get the committee through stage 2, and were up against constant deadlines for the lodging of amendments. Those same clerks had to be involved in all the background work to prepare the amendments for stage 3, and our appreciation of that is unqualified. I am sure that all members will join me in thanking the clerks.

The committee expressed concern about the interaction between this bill and other bills that are planned by the Executive, and about the difficulties that that poses for us. This is not a stand-alone bill, although we were obliged to treat it as if it was, which continued to give us some difficulty throughout stage 2. For that reason, when it is enacted, the bill will not immediately come into force. No attempt was made to amend section 1, which is designed to leave open the commencement date. I mention that fact, as it shows that there is nothing novel about such a provision.

I now refer to the principles of the bill. The abolition of feudal tenure will be of great satisfaction to people in Scotland and to the Scottish National party. It was a key commitment of the SNP's land reform policy in the run-up to the elections last May, and it is testament to the widely expressed need for such a reform that the major parties were committed to a similar bill in the run-up to May. From Phil Gallie's earlier comments, I take it that we can now include the Conservatives in that commitment, as they have decided to join the majority in favour of abolition.

The bill is integral to any programme of land reform and would always have been required as the first piece of legislation in any package of reform, no matter how it was designed. However, I must reiterate the concerns that I raised this afternoon about the omission of any reference to the public interest in the bill. Effectively, the bill introduces a form of absolute ownership with which a great many people might have problems, and it runs counter to a widely held belief that the people of Scotland should have ultimate ownership of the land. According to that principle, we would be able to run public interest arguments as and when they were necessary.

During the stage 1 debate, I referred to Andy Wightman's concern that, without some overt recognition of the public interest, we might find ourselves bound more tightly in matters of what we can and cannot do, despite there being a demonstrable social or environmental need. Those concerns continue to be widely held, and I am unsure whether what is being passed today resolves that issue. Time will tell, no doubt, and the minister should not be surprised if we return to that issue in discussion of future land reform legislation.

I remain firmly of the belief that Scotland should not become a series of parcels of land that are in the absolute ownership of individuals, organisations, offshore trusts, charities or whatever. The public interest should be enshrined explicitly somewhere as a principle, so that, in future, recourse can be had to that principle in the courts if necessary.

Although that might sound like an academic argument, recent events have shown that there is nothing academic about land ownership in Scotland. There is a continuing row about the putative ownership of the Cuillin by the MacLeod, and it is a great pity that no one anywhere seems to want to do anything about that. I cannot help but wonder whether that is because it might open a can of worms. Perhaps some of the so-called landowners would turn out to be nothing of the sort—it is surely time that we found out.

I regret that we have not been able to include any requirement in the bill about registering land information. Attempts to do so have been ruled inadmissible, which is unfortunate. We are missing a vital opportunity to begin the process of finding out exactly who owns land in Scotland. It is difficult to see how any system of meaningful land reform can exclude the fundamental point that the first thing we must be able to ascertain is who owns Scotland. That can remain a live issue, as the debate over the ownership of the Cuillin has shown.

Although I do not want to step too far out of the confines of today's debate and trespass on the debate secured by John Farquhar Munro, I suspect that I am not the only one to be disappointed by the blank refusal of the Executive—or any agency—to undertake the proper research to determine that particular ownership once and for all.

As I said, perhaps such an inquiry would simply open a can of worms. From my experience at Dumbarton District Council in the 1980s of trying to ascertain the ownership of land around Dumbarton rock—a file that I inherited from my predecessor and with which some poor junior solicitor is still struggling, for all I know—I am aware of how difficult this exercise can be in Scotland and of the real problems that it can cause.

Tying compensation payments to a provision of registering a land interest in Scotland would have provided additional information for public consumption. Regrettably, we were unable to lodge that amendment and have now lost that opportunity.

As I said at the outset, the bill is broadly similar to the one that the SNP would have wanted in its own land reform package. My belief that it could have been an even better bill does not diminish the SNP's welcome for it and I heartily endorse it today.

Photo of Phil Gallie Phil Gallie Conservative 4:47 pm, 3rd May 2000

The Conservatives also welcome the bill. Jim Wallace's reference to simple, outright ownership of property by individuals and their families states an all-important principle, and the bill is well worthy of support on that basis alone.

Roseanna Cunningham and Jim Wallace have thanked various people. I want to add Angus MacKay's name to that list of thanks; he took the bill through the committee stage in a very courteous manner. I also want to thank Lyndsay McIntosh and Brian Monteith, who spent some time on the Justice and Home Affairs Committee while I was in Ayr for some reason or other. I should say that we got a better result in Ayr than we did with some of our amendments to the bill.

Visiting the pubs of Ayrshire and the football grounds of Scotland, I have found that the issue of land reform has constantly been brought to my attention. People are always asking, "Are you involved in the Abolition of Feudal Tenure etc (Scotland) Bill?", to which I reply, "Yes—and it's great." [Laughter.] Seriously, however, people are probably not fully aware of the implications of the bill. When the bills start to drop through the door and people are asked to meet their feudal buy-outs at 20 times the rate set on the stock exchange, they might feel a bit aggrieved at having to fork out £400 or £500. That said, the instalment element covers that to a degree.

The issue of neighbour arguments also highlights a potential downside of the bill. In the past, people have used the conditions of feu to argue out neighbour problems. Although there might be some difficulties with that in future, the good that the bill brings will outweigh such problems.

As for Conservative views on the issue, I have mentioned Mr Heath's involvement in 1974—and I do not always talk with much enthusiasm about his involvement in most things. However, I am usually enthusiastic about Mrs Thatcher's activities. I am quite sure that her involvement in 1991, in setting the task of reform for the Scottish Law Commission, which has seen its fulfilment today, will cause her to raise a glass to the Scottish Parliament.

The contents of the bill are basically in line with our 1999 manifesto commitments. We look forward to the work of the Justice and Home Affairs Committee and to getting stuck into the bills on title conditions and law of the tenement.

Photo of Pauline McNeill Pauline McNeill Labour 4:50 pm, 3rd May 2000

This is an historic moment for the Parliament—although it is the third bill that we have debated in the first session—because we have swept away 300 years of law. We have had a constructive debate, and although we have disagreed on one or two points, it is important that those views have been aired in Parliament. I am particularly pleased that we have had an opportunity to discuss the issue of public interest. I thank Jim Wallace for his reply on that and his comment that there are plans to consider other areas of Scots law where we can advance the public interest.

At times, this has been a confusing debate, and we have all learned one or two things about the role of the Crown that might prove useful when we come to play Trivial Pursuit or another question-and-answer game. The abolition of feudal tenure might not seem the most populist piece of legislation, but some aspects will affect the lives of ordinary people. In some constituencies, there have been situations close to blackmail, when feudal superiors have been able to request vast sums in return for permission to carry out reasonable development.

The bill is good legislation. Some conveyancing students may thank us, as they will no longer have to go through the tedious subject of feudal tenure. Some people may miss feudal tenure. However, in the long run, the people of Scotland will thank us for the legislation.

Photo of George Reid George Reid Scottish National Party

We now move to the open part of the debate. Members should restrict speeches to three minutes.

Photo of Euan Robson Euan Robson Liberal Democrat 4:52 pm, 3rd May 2000

The Abolition of Feudal Tenure etc (Scotland) Bill is very welcome. It is the start of the land reform process in the Parliament. I add my thanks to those that have already been expressed: to the clerks of the Justice and Home Affairs Committee for their skill in guiding the committee through the bill; to the convener for keeping the committee on track; to the witnesses for their evidence; to the Minister for Justice for his comments today; and, echoing what Phil Gallie said, to the Deputy Minister for Justice for his work during stage 2. A memorable moment in the committee was the silent pause after Angus MacKay's description of regalia majora and regalia minora.

The first entire act that is repealed by the bill is the Feu-duty Act 1597. It is perhaps worth recording for the packed press gallery that the bill repeals 46 entire acts, and 246 sections of and 57 schedules to other acts. I can envisage yards of shelves in lawyers' offices being cleared in due course.

Liberal Democrats have long supported the abolition of feudal tenure as the first significant milestone in the partnership for government programme for modernising land ownership law. Partial reform started in 1970 and 1974, and the work of the Scottish Law Commission has been fundamental in securing completion of that reform. The Liberal Democrats look forward to the further bills mentioned by the minister—those of my colleagues who are not on the Justice and Home Affairs Committee might look forward to them more than I do.

I commend the bill to the Parliament.

Photo of Christine Grahame Christine Grahame Scottish National Party 4:54 pm, 3rd May 2000

I will be brief, as we have talked long enough. I just wondered where the gentle Angus MacKay was. Perhaps he has had enough of feudal tenure.

The bill is to be welcomed, but it is not radical enough for the Scottish National party. The issue of public interest will be revisited. Unfortunately, as Roseanna Cunningham said, the opportunity to introduce a comprehensive land register for Scotland has been missed. We must address that issue, so that, as Roseanna rightly said, we know who owns Scotland.

Finally, on agricultural communities, I hope that the minister will return to part 4 of the bill, which he says will be deferred. I took against the minister on a small point. There are problems with section 16; there is a conflict and the minister should take the opportunity to sort it out.

Photo of Robin Harper Robin Harper Green 4:55 pm, 3rd May 2000

I add my congratulations to the Justice and Home Affairs Committee, the minister and the Executive. However, I want also to say that the Scottish Green party has serious concerns about the omission of public interest from the bill and to add my voice to those of Roseanna Cunningham and Christine Grahame. We will pursue the matter. I am glad that the minister has at least indicated that public interest may be pursued in other ways. I would like an amendment to be introduced in future. We also have serious concerns about the omission of a land register.

Photo of Fergus Ewing Fergus Ewing Scottish National Party 4:56 pm, 3rd May 2000

There seems to have been an outbreak of consensus this afternoon, which I suppose is to be welcomed, but I might shortly bring it to an end. I congratulate the minister, the committee and all the people who played a lead role in the passage of the bill. They have done a power of work.

The bill is good and makes progress, but there are problems, as the minister had the courtesy to recognise, especially in relation to part 4. Twenty-six years ago, most of Scotland thought that feuduty had been abolished. It was not. Today, people in Scotland will think that the feudal system has been abolished. It has not; it has been renamed. Feudal superiors are dead; long live the owners of the dominant tenement. As that reality percolates through, there will be feelings of disappointment, which will temper the progress that has been made.

However, I was gratified that the minister said that some of the problems that were raised today will be re-examined before part 4 comes into force. It would be churlish of me not to accept that assurance at face value. I am sure that the minister will redeem it in due course.

Finally, I look forward to further legislation to improve and protect the position of tenant farmers throughout Scotland, to tackle the problems of those whose long residential leases are coming to an end and who may face eviction and to end the obscenity that Scotland is the only country in Europe where there is a free market in land and where land is a commodity. I welcome the fact that, thanks to John Farquhar Munro, we will be debating that in Parliament shortly.

Photo of Brian Monteith Brian Monteith Conservative 4:58 pm, 3rd May 2000

Members may recall that when we first debated the bill, I mourned the passing of feudalism. I do not want to rain on the minister's parade, but in some senses I still mourn the passing of feudalism.

Photo of Brian Monteith Brian Monteith Conservative

I do play Nanosaur on my computer.

Much of the difficulty has been caused by the terminology. I echo Fergus Ewing's assertion that feudalism has been not so much abolished as amended. That is why I am particularly happy to support the bill, and it might give the lie to the reason why the Scottish National party is uncomfortable with Tory support for the bill. We might be removing words such as vassal and feudal, but feudal tenure has brought many benefits over the years. When members next enjoy looking up at the fireworks from Princes Street gardens, they should reflect on the fact that, were it not for feudalism, there would be no Princes Street gardens.

The Conservatives have done much to work with the grain on the bill. We have sought to amend it, and much of what we think is good in the feudal system has been preserved.

The minister touched on the fact that there is still the ability to maintain some burdens through disposition, and the bill itself maintains some burdens. We believe in free markets and in the ability to enter into contracts. That is much of what feudalism seeks to do. Having sought to amend the bill to remove the parts of feudalism that we all deplore and consider outdated and anachronistic and to preserve those that work, the Conservatives offer our sincere support, and congratulate the minister and his colleagues on successfully completing it.

Photo of Jim Wallace Jim Wallace Liberal Democrat 5:00 pm, 3rd May 2000

There has been a wide welcome for the bill. I can accept neither Brian Monteith's nostalgia nor Fergus Ewing's suggestion that the bill is some sort of repackaging of the feudal system. The burdens that have been retained are there for a purpose. For example, we have received many representations about sheltered housing complexes, where common amenities have to be maintained. We have also considered cases of neighbourhood burdens that exist for perfectly good reasons and that may, by dint of one solicitor's conveyancing practice, have been achieved by feudal charter rather than by disposition.

The right balances have been struck. The bill is one part of an overall programme of land reform. A land reform bill will be introduced later this year, which will give us further opportunities to deal with many important issues relating to land and land use in Scotland. It is important to remember what section 1 of the bill says:

"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."

Photo of Jim Wallace Jim Wallace Liberal Democrat

To a feudal superior, yes. [Laughter.]

Photo of John Home Robertson John Home Robertson Labour

I offer the minister my heartfelt thanks for the fact that I will be the last ever feudal superior of the barony of Eyemouth. I am not sure whether there will be celebrations in the streets of Eyemouth tonight, but I shall certainly be celebrating.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I congratulate the member and, to add to the champagne popping that will go on in Eyemouth tonight, I should say that

"nothing in this Act affects the dignity of baron or any other dignity or office".

So Mr Home Robertson can even stand on his dignity while he rejoices in Eyemouth tonight.

Photo of Brian Monteith Brian Monteith Conservative

Is the minister aware of whether his fellow minister will seek to claim compensation for his burdens?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am sure that he would declare his interest properly if it was ever required.

Section 1 states that the feudal system will be abolished. Those are words that Scotland has waited centuries for. It is a great credit to this Parliament that, in our first year, we are doing just that. I urge the Parliament to support the motion.

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

That concludes the debate. There are no Parliamentary Bureau motions today. Before decision time, I have an administrative announcement to make. Those who are attending the meeting with the President of Malawi at 6.25 pm should occupy the seats in the front rows in the middle of the chamber. The President's party will occupy the seats usually occupied by the Conservatives. We will have many other guests from the Churches, the universities and the Jubilee 2000 campaign. We will not be using the galleries, so it would be helpful if members could occupy the front rows. The meeting will last only half an hour and there will be a reception afterwards in the Rainy Hall at the end of the black and white corridor, to which everyone is invited.