Neil King (a retired lawyer) has drafted a bill – the Local Government Amendment (Common Good) (Scotland) Bill – to amend the Local Government (Scotland) Act 1973 to remedy what he considers to be a deficiency in the drafting of the Act that meant that the Inner House of the Court of Session had no option but to uphold the appeal by Portobello Park Action Group. He suggests,
“that the omission of the words “or appropriate” from section 75(2) of the Local Government (Scotland) Act 1973 is a pure drafting error and is it credible that Parliament meant to provide a mechanism for the outright *disposal* of inalienable common good but not for the lesser step of retaining it for an alternative use?”
He has written to Keiza Dugdale MSP as follows,
“Dear Ms Dugdale
I gather there is talk of a private act of parliament to authorise the construction of a new school on Portobello Park in the wake of the Council being blocked by the Court of Session decision.
I personally feel that private acts are effectively saying “change the law for me” whereas the law should only be changed for the benefit of everyone.
Also, it could set a dangerous precedent in that, each time someone comes up against a legal obstacle, they might be tempted to say “Oh well, no problem, we’ll just get a private act of parliament!”
I think there is a preferable solution which avoids these criticisms and is just as simple. It is a public act to amend the general law relating to all common good (not just Portobello Park) to remove the obstacle highlighted by the Court of Session in its recent judgement. In this way no other communities could find themselves thwarted in the way Portobello has and find themselves having to promote private acts.
As I’m sure you know, the nub of the court’s decision was that, the Council having conceded that Portobello Park is inalienable common good, section 75 of the Local Government (Scotland) Act 1973 gives the Council power to dispose of the park if it obtains the consent of the court (which may impose conditions) but not to “appropriate it” – i.e. retain it but change its use (with court consent).
That is indeed what the section says but it must have been a drafting oversight because it seems inconceivable that Parliament intended to provide a mechanism for the disposal of inalienable common good but not for the less extreme step of retaining it but changing its use.
And as someone observed, what could be a more fitting use of common good than its retention by the Council for the building on it of a school for the benefit of the local community?
Hence what I think is required is a very short (public) act to amend section 75 to add in references to appropriation (retention and change of use) alongside the references to disposal. I have drafted a bill and attach it for your use in case you wish to promote it as a private member’s bill. If it would help, I’d be happy to draft an explanatory note and policy memorandum to accompany this bill.
CC. Kenny MacAskill”
This information is derived from posts by Neil King at 1500 today on the Talk Porty Forum.