Parliament House Update 2
This blog is long overdue (as indeed are many) but I understand that the City of Edinburgh Council’s Audit Committee will shortly be considering a report into the Parliament House fiasco. It is therefore appropriate to publish this second update on the affair. The original story is here and Update 1 is here).
In summary, Parliament Hall forms part of the common good of the City of Edinburgh but, through a series of apparent blunders, title was granted to Scottish Ministers in 2005 (see the original story for full background). In 2010, Fergus Ewing, Minister for Business, Energy and Tourism signed the Transfer of Property etc. (Scottish Court Service) Order which vests the property in the hands of the Scottish Courts Service.
On 19 February 2015, four days after the story broke, Alison Johnstone MSP asked the First Minister whether the Scottish Government would co-operate in resolving the matter (see above video clip and Official report pg 16 here). Alison Johnstone then wrote to the Scottish Government and received a reply. At the same time a Freedom of Information request revealed other elements of the story. These are outlined in what follows.
Alex Neil Letter
On 9 March, Cabinet Secretary Alex Neil wrote to Alison Johnstone and outlined how, in the view of the Scottish Ministers, Parliament House (or Parliament Hall as it is called in the letter) came to be regarded as being in their ownership. It appears that Scottish Ministers are relying on the Commissioners of Works Act 1852 which, in Section 4, vested all the courts and buildings of the Courts of Session and Justiciary in the ownership of the Commissioners of Works. Since Scottish Ministers are the statutory successors to the Commissioners, the argument goes, so Scottish Ministers were entitled to seek to obtain a Land Register title from the Keeper of the Registers of Scotland.
I do not find this a credible explanation. Acts of this sort are passed by Parliament to transfer the ownership of property from one public body to another. The 2010 Order mentioned above is a contemporary example of such legislation. Such Acts cannot lawfully transfer land or property owned by third parties (which includes land owned by local authorities such as the Royal Burgh and Corporation of Edinburgh.
As noted in the original blog, Parliament House is a building about which much is known. The City accounts of 1875-76 place on record the Council’s ownership of the building. A comprehensive report of 1895 on the Municipal Buildings of the City does the same. And the comprehensive asset survey by the Town Clerk and City Chamberlain in 1905 (Report of the Common Good of the City of Edinburgh by Hunter & Paton) re-iterates the Council’s ownership.
It is inconceivable that theses officers of the Corporation could be recording the ownership of this building in 1875, 1905 and 1925 if, as argued by Scottish Ministers today, ownership of the property had been transferred by an Act of Parliament in 1852. Had the 1852 Act transferred ownership, the Council would know all about it. But the Act did not do this because such Acts cannot ( in the absence of a court order or other legal means of acquisition) transfer the ownership of property that is not already in the ownership of a public body accountable to Parliament.
Scottish Government Correspondence
In information released as part of a Freedom of Information request to Scottish Ministers (6,2Mb pdf here), it is evident that the Council had made contact with Scottish Ministers as far back as February 2014. Further internal correspondence relates to media enquiries made in February 2015 by Gina Davidson from the Evening News who worked on the story with me.
City of Edinburgh Council
The Council appears to have made contact with Scottish Ministers as far back as 6 June 2014 in a letter outlining its concerns (see here).
The fatal letter that was written on 9 May 2006 by the City of Edinburgh Council to the Scottish Government declaiming any interest in Parliament Hall has also come to light – extract below (full pdf here)
Faculty of Advocates
Finally, I have obtained a fax from the Faculty of Advocates dated 19 June 1997 that claims that the Laigh Hall (which used to store the Maiden, the gallows and the City lamps) had come into the ownership of the Faculty from the Town in exchange for properties to the north of the Signet Library. There is no evidence that this claim has any foundation in fact.
To Conclude
Whether the City of Edinburgh Council will be able to recover ownership of Parliament Hall is yet to be determined. The most interesting revelation from the above is the assertion by Scottish Ministers that the 1852 Act was the basis upon which they proceeded to assert their title. I think this view is flawed.
The City of Edinburgh Council’s Audit Committee meets on 18 June.
An investigation by Green Councillor Gavin Corbett into the city’s records on this found that the 2006 letter had confused seventeenth century Parliament House off the High Street with the Royal High School building on Calton Hill which had been prepared as the meeting place for the Scottish Assembly in 1979. The error was the Council’s. It didn’t know it owned the seventeenth century building off the High Street because it didn’t know its own history. Or Scottish history, for that matter.
Charles I visited Scotland only once during his time as king (1625-1649). Though he had been born in Scotland he had little memory or knowledge of it as the family had been raised at the English court.
When he did visit he was appalled that there was no meeting house in which his Scottish parliament could convene and ordered the burgesses of Edinburgh to provide one. Hence the equestrian statue to Charles outside the building. They all moaned about it at the time as it was raised from their money.
As an Edinburgh resident I do find myself wondering if the City of Edinburgh Council is a worthy successor to those of its predecessors who originally built and paid for the building and if the current ownership by the Scottish ministers or Faculty of Advocates might not actually be an improvement. At least the current owners maintain and use the building for legal discussions, (a use close to its original use) have a dignified and appropriate sense of its history, and allow public access for free, without any tourist tatt. It was the building in which the Scottish Parliament conducted the 1707 union negotiations and surrendered Scotland’s sovereignty for commercial rights to participate in the British Empire. Sometimes things work out for the best and Edinburgh Council lost this building due to carelessness and ignorance just as the Scottish commissioners surrendered Scotland’s sovereignty out of fear and greed. In that context one is entitled to ask who the rightful owner ought to be, and in my view, that’s the people of Scotland.
There is nothing new in a bunch of lawyers acquiring other peoples assets for nothing.
They have been doing this for centuries, inn cahoots with their landlord chums.
But this misrepresents what actually happened. The Council was asked if it owned the hall and it said no, it didn’t. So it was transferred to the Faculty of Advocates because they had been using the building and maintaining it for years. They did not steal, it, they were offered it.
The current owners maintain it and allow free public access.
The City of Edinburgh Council are skint and can hardly maintain the city’s roads, never mind a historic building they have no use for.
The confusion surrounding the ownership of Parliament House perhaps illustrates some of the big issues around common good land. There was uncertainty about who owned it and there is not/was not a robust system for managing that ownership. Consequently it has been lost to the Faculty of Advocate/Scottish Ministers (I think!). There may be other properties that are similarly mismanaged – I think I am right in saying that we just don’t know. Perhaps Local Authorities are not the best organisations to manage/hold title to common good land. The management of common good assets might be quite complex as some commentators on this thread have pointed out; some assets might be very valuable on paper however it is difficult to realise their value. The upkeep of some assets may be very expensive. Some assets might be stocks and shares rather than real estate.
Perhaps the way forward is for new legal entities to be created which are very clearly tasked with establishing what land is common good, what has been lost (and can be recovered) and establishing a management plan for common good assets. I think this should be managed locally. This ties in with some of the responses regarding common good land submitted to the recent government consultation. Is this something that could be articulated in the proposed Land Rights and Responsibilities Policy statement and then taken forward by the Scottish Land Reform Commission? Once an Edinburgh City Common Good Trust (I just invented that) has been established the Scottish Ministers could gift the parliament building to the (elected) trustees to manage on behalf of its new owners (the people of Edinburgh).
Who has been collecting rent from the faculty of advocates?
There must be a substantial backrent due.
Is that not one of the complexities of the situation? No-one has been collecting rent on behalf of ‘the people’ but then on the other hand ‘the tenants’ have been paying for the up-keep of an expensive building and not it’s owners; maybe the point is that this arrangement should be made explicit? If Parliament House and other common good assets were to be managed as a distinct ‘property portfolio’ then I suppose they would have to be run in a way that meets all the running costs and hopefully makes some profit which can be used to benefit the community. Maybe that is difficult to achieve?
I thought I would share this with folks in case they are interested. I wanted to find out how much common land there was in Inverness (where I live) how it is used and how well accounted for it is. I suppose I wanted to find out how this compares with the management of CG land in other areas.
It appears that Inverness does have a well defined CG land ‘portfolio’. There is a Highland CG land policy defining how it is managed. As of 5th March 2015 CG land in Inverness was worth;
land and property (including Town House) – value – £21.272m
(ii) heritage assets (pictures and artefacts) – value – £1.452m
(iii) investments (equity portfolio) – value £10.905m (current
valuation £10.937m)
I also contacted a local councillor to find out what was included in the CG land and was told – “There is actually quite a bit of Common Good land and property in Inverness. These include plots down the Longman (Ind estate) and the Carse (Ind estate), the Victorian Market, the Town House, the High Street steeple, 1–5 Church Street, the pitch at Grant Street Park, and the foreshore beyond the Kessock Bridge”
The Inverness CG fund pays for the annual Hogmanay festival and several million has recently been spent on refurbishing the townhouse and steeple. I thought this was interesting as does appear to well managed.
I read an interesting article in The National on 12th June about the sale of Huntershill House by East Dunbartonshire Council. The article suggests that this is part of the CG fund. The schedule for the property states that it is owned by the council. Common Good Land in Scotland (Wightman and Perman 2005) states East Dunbartonshire Council had ‘nothing to report’ when they replied to the authors request for information about CG land. Interesting… lots of variation on the management of CG land in Scotland.