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.

The latest developments in the story of Parliament House (see previous blog) are as follows.

ONE

Scottish Green Party Councillor Gavin Corbett has had meetings with senior officials in the Council and shares his thoughts here.

TWO

The Leader and Deputy Leader of the Council (Andrew Burns and Steve Cardownie) have tabled an urgent motion for the Corporate Policy and Strategy Committee on 24 February 2015. It will require to be ruled urgent by the Convener if it is to be considered. The full text can be read here. it concludes by recommending that the Chief Executive of the COuncil writes to the Scottish Government Permanent Secretary to seek a voluntary resolution of the issue.

There is quite a bit of interest in this motion.

Under item 5, the Committee is invited to note that in June 2008 it was resolved that a review of common good would only be carried out if and when property was being sold. The motion omits to mention, however, that the question of Parliament House had already been raised in my report of April 2006 in which I asserted that Parliament House should have been included in a list of common good assets that had been supplied to me in 2005. The Council’s responded by preparing a Review of the Common Good for a meeting of the Resource Management and Audit Scrutiny Committee on 12 October 2006 in which, under the heading “Parliament House/The Old Royal High School”, it said nothing about Parliament House but narrated the history of the High School (click here for relevant extract).

I replied in a further paper here in which I argued that,

“It should be noted that Parliament House and the Old Royal High School, as listed on page 3 of my October Report are not the same. Parliament House is located off Parliament Square opposite the City Chambers. The Old Royal High School is on Regent Road.

Parliament House was ascertained by Hunter and Paton to form part of the Common Good in 1905 (p.31). I know of nothing that has happened since then that would have removed it from the Common Good but perhaps it has. If so, it would be useful to have the information.”

The 12 October 2006 Review, however, was withdrawn and never tabled. As I wrote at the time,

“Then I waited. I looked at the agenda for the 12 October meeting but there was no mention of the Common Good Review. Likewise, at the next meeting on 16 November, there was no mention of the issue. What had happened? Why had the Review of Common Good in Edinburgh not been tabled?

As of today (25 November 2006) I do not know the answer to this question. Hopefully I will know soon.”

I never did find out. But in December, a paper was tabled at the Executive of the Council which says nothing about the investigations reported in the October 2006 review. Then in January 2008, a further Review was published which this time contained exactly the same wording under the heading “Parliament House/The Old Royal High School” and said precisely nothing about Parliament House.

We now know from item 1 in the motion tabled today that the Council knew in April 2006 that Parliament House (in its mistaken view) did not form part of the common good and was not owned by the City. My report was tabled in April 2006 So why, in 2006 and 2008, did the Council not divulge that Parliament House was not (in its view) owned by the City and, instead, stay silent on the matter? DId they know and rather not admit it?

THREE

Given that Scottish Ministers had no prior title to Parliament House, it would have been normal practice for the Keeper of the Registers of Scotland to have withheld indemnity for that part. In other words, the Keeper would say, “maybe you (Scottish Ministers) do indeed own it but I am not satisfied that there is sufficient evidence“. The state guarantee granted in the Land Register would have been withheld and the title would have been open to challenge by the true owner (City of Edinburgh Council) for ten years i.e. until November 2015.

Why did the Keeper not withhold indemnity? I asked the Registers of Scotland this question today and they provided the following statement.

“When the first registration application was presented the Keeper undertook a detailed examination of the prior titles. As one might expect with such property the Sasine titles were mostly old and contained fairly vague common law descriptions. Notwithstanding the evidence of title that was presented in support of Scottish Ministers, we sought additional assurances in respect of a small number of other bodies who may also have been able to demonstrate an interest to the area in question – this enquiry reflected the historic nature of the evidence of title that was presented. That included Edinburgh City Council. We asked Scottish Ministers, as applicant, to confirm the position in relation to these other bodies. All of the bodies identified confirmed they had no right title or interest to the area in question. Accordingly, we considered an exclusion of indemnity was not required.”

That’s all for now.

Image: De Wit version of Gordon of Rothiemay’s original 1647 plan showing Parliament House seven years after construction. Reproduced with the permission of the National Library of Scotland.

Regular readers of this blog will be familiar with the subject of common good land. This is land and property in the Burghs of Scotland that is the historic property of the burgh held on behalf of the citizens. (1) This blog has reported on many cases of maladministration of these assets where Councils have been sloppy in their record-keeping and where the interests of the citizen has been poorly served by the Councils that replaced the Town Councils in 1975.

But Scotland’s four ancient cities do not have any real excuse. Unlike Kirkcaldy or Hawick, Glasgow, Edinburgh, Dundee and Aberdeen have enjoyed continuity in having always had a council governing the affairs of the city. So one might expect them to have a good idea of what properties they hold as part of the common good. Which makes this tale of unmitigated incompetence just that little bit more shocking.

As revealed in the Evening News today, the City of Edinburgh Council has lost the ownership of one of the handful of the most historic properties in the City. It didn’t sell it by accident in some fearful and misguided property deal. It didn’t even know that it no longer owned it. It just realised one day that something had gone very horribly wrong. Quite why remains unclear since the history of the building is very well documented in the Council’s own records.

Parliament House

The building is Parliament House which sits largely hidden from view behind the High Kirk of St. Giles and can be glimpsed from George IV Bridge just north of the National Library of Scotland. The history of the building is recounted in great detail in “The Municipal Buildings of Edinburgh – A sketch of their history for seven hundred years written mainly from the original records”, a book commissioned by the Town Council in 1895 and written by Robert Miller, the Lord Dean of Guild. The actual construction is recounted over 79 pages in “The Book of the Old Edinburgh Club”, Volume 13, 1924. This is a building about which a great deal is known.

Image: Ordnance Survey 1852 Reproduced with the permission of the National Library of Scotland.

In the 16th century the Scots Parliament had no fixed abode and sat in Perth, Linlithgow, Stirling and Aberdeen as well as in Edinburgh. (2) In 1632 Charles I requested the Town Council build a new home for the Parliament and construction extended from 6 April 1632 to 11 November 1640. (Update – see comment from Alan MacDonald to effect that this is not so and that the Town Council took their own initiative. My source for this was Historical Monuments Commission). The land upon which Parliament House sits was part of the old churchyard of St Giles which was gifted to the Town Council in a Charter by Queen Mary in 1566.

The total cost of construction was £10,554,17s,7d. with 64% of the funds paid out of the common good fund and the remainder raised by public subscription from the citizens of Edinburgh. (3) The buildings were to be occupied rent free by the parliament of Scotland and the College of Justice. The Town Council paid for the upkeep of the building and for nearly two centuries Parliament House was the public hall of the city hosting civic receptions and even musical festivals. The Edinburgh Festival of 1815, 1819 and 1824 witnessed concerts of Haydn’s Creation and Handel’s Messiah.

In 1816, the Town Council handed over responsibility for the upkeep of the building to the Exchequer since the Courts of Law made almost exclusive use of it. The most recent known civic use of the building was for a reception on the occasion of the state visit of the King of Norway in 1962.

City of Edinburgh Council loses ownership

In 2004, work began on a plan to redevelop the Court of Session including Parliament House which was by now under the day-to-day administration of the Scottish Courts Service. The £60 million project was completed in 2013. In order to expedite the project, Scottish Ministers decided to record a title to the complex of buildings by way of a voluntary registration in the Land Register.

In 2005, Scottish Government solicitors appear to have been under the impression that, since the Scottish Courts Service had occupation of Parliament House, it was owned by Scottish Ministers. My understanding of what follows is derived from a source within the Scottish Government.

The Keeper of the Register of Scotland was not satisfied that Scottish Ministers had any evidence of ownership and so advised them to contact Edinburgh Council who, it was thought, was the true owner. The question was put to the Council who apparently confirmed to the Scottish Government that the it had no right, title or interest in Parliament House. The title was then registered in the name of Scottish Ministers.

Scottish Ministers’ Title – MID83631 title and plan (1.2Mb pdf)

Thus did the Council lose ownership of one of the most historic buildings in the City – a national Parliament in the capital city of an ancient European nation and a building constructed on common good land and funded by the common good fund and members of the public.

But stranger things were then to follow. The Faculty of Advocates has for centuries regarded Parliament House as theirs. They had almost exclusive use of it and so, by means as yet unclear, within a month of Scottish Ministers taking ownership, the Faculty persuaded Scottish Ministers to convey to its ownership for no consideration the room known as the Laigh Hall within Parliament House. The subjects are a bit odd comprising “the room on the lower floor shown edged red on the title plan (said subjects extending only to the inner surfaces of the walls, floor and ceiling thereof)”. The use is restricted to a library and study area for members of the Faculty of Advocates and for associated seminars and exhibitions. Scottish Ministers retain a right of pre-emption should the Faculty ever choose to sell this historic block of fresh air.

Faculty of Advocates Title – MID86039 title and plan

Why did this happen?

On what basis did the Council claim to have no interest?

The Council’s records demonstrate quite clearly that Parliament House belongs to the City.

The Council has good records of ownership

As noted by Miller in 1895, the accounts of the city 1875-76 puts on record the City’s ownership of Parliament House which had been built by the City on land owned by the City and formed part of the common good of the City. It noted that, despite the day-to-day management being in the hands of the Courts, “ownership had never been forgotten but there had not arisen any necessity to assert it.”

In the famous Report of the Common Good of the City of Edinburgh by Thomas Hunter (Town Clerk) and Robert Paton (City Chamberlain) published along with a beautiful map in 1905, it is recorded that “The large hall with certain portions around it, still belongs in property to the Corporation. The rooms underneath the large hall appear to have been handed over by the Corporation for the use of the Advocates’ Library”.

Concerned about the state of the common good in the city, in April 2006, I wrote a Report on the Common Good of the City of Edinburgh and submitted it to the scrutiny committee of the council. In it, I noted a number of properties that had been missed from the 2005 list of common good assets that had been supplied to me by the Council. These included The Meadows and Parliament House.

The Council responded in October 2006 with a Review of the Common Good in Edinburgh. It appeared to confuse Parliament House with the Old Royal High School and, uniquely among the properties being discussed, failed to address the question of Parliament House’s history. (4) I now suspect why it did this. – it was aware of the  inadvertent ceding of ownership to Scottish Ministers.

What happens next?

The Council issued a terse statement to the Evening News in response to its enquiry.

We are aware of this issue and have raised it with the Scottish Government and the Scottish Court Service.”

The owner of Parliament House is now, in law, Scottish Ministers and the Faculty of Advocates. Under the law as it was in 2006, the Council has no legal means of recovering ownership. The best that can be hoped is that Scottish Ministers and the Faculty agree to return the property to the Council’s ownership. The full council should then pass a resolution to the effect that the building is owned by the Council and forms part of the common good of the City.

This is a shocking display of incompetence by the Council. It begs the question whether anyone noticed it since 2006. Perhaps the author of the October 2006 Report did and chose to conceal the fact. The fiasco underlines the need for a proper register of common good properties and for an open and freely available land register so that the citizen can spot land transfers like this. (5)

I await developments with interest.

NOTES

Blog Updated 1045hrs 16 February after realising that October 2006 report of Council referred exclusively to Old Royal High School.

(1) Read more here and under Blog Category/Common Good

(2) See http://www.rps.ac.uk/static/mapstext.html

(3) See Accounts of the Treasurer for full details.

(4) The report then proceeds to confuse matters by claiming that it had been sold in 1977 when in fact, this refers to the Old Royal High School. See extract below.

(5) The Community Empowerment (Scotland) Bill currently before Parliament contains a provision requiring a statutory register of common good assets.

The Evening News has an exclusive story today by John-Paul Holden that the National Galleries of Scotland is planning to expand into East Princes Street Gardens as part of a £15 million plan to create a “world class” home for its Scottish collections. The extent of the land involved is unclear from the article but it talks about a 5 metre-wide strip to “allow [its] boundary to be aligned with that of the Weston Link”. This implies that is it the strip of land to the east of the walkway above the railway (see image above) which would extend south from the cafe extension to the north.

East Princes Street Gardens is common good land under the ownership of the City of Edinburgh Council who will have to obtain the permission of the courts to dispose of the land. The land concerned is also subject to the provisions of Section 22 of the City of Edinburgh District Council order Confirmation Act 1991 which prohibits the construction of any buildings in the park with the exception of “lodges for gardeners or keepers, hothouses and conservatories, monuments, bandstands, public conveniences, police boxes and buildings for housing apparatus for the supply of electricity or gas.” The Galleries thus requires a private act of Parliament to remove the land concerned from this restriction (the article implies that it is the common good status that necessitates the private act whereas in fact that only necessitates an order from the courts).

This is not the first time such a move has been made. The National Galleries of Scotland Act 2003 provided authority for the extension of the gallery into the gardens at the north end. The act was the first private legislation to be passed by the Scottish Parliament. The deal included some land on the banks of the Mound being given to the Council in exchange for land in the gardens. (1)

It remains to be seen what the Council, the Courts and Parliament make of this proposal. On the face of it it appears modest but if I was an MSP, one of the questions I would be asking is

“You came here to obtain an act of parliament in 2003. Now you are back again 12 years later. Is this going to be a regular occurrence?”

NOTES

(1) Promoters Memorandum & Explanatory Memorandum of 2003 Bill. Explanatory Notes of 2003 Act (HMSO website)

This is a brief blog to note the fact that Glasgow City Council has advertised for lease 2.7 hectares of former playing fields in Victoria Park, Glasgow (top left in picture above and Rydens brochure here). The closing date for offers is 12 noon on 26 September 2014.

From the evidence I have seen, this park, which was acquired by the Town Council of Partick in 1887, appears to be inalienable common good land. A lease for a period of around 10 years or more would constitute a “disposal” for the purposes of Section 75(2) of the Local Government (Scotland) Act 1973 and thus require the approval of the Courts before it could be executed.

The Friends of Victoria Park group has raised this matter with Glasgow City Council on 8 September 2014 and awaits a response.

The law relating to common good is in serious need of modernisation. If this land in Victoria Park is indeed inalienable common good land then the City Council will be acting unlawfully if it attempts to lease it out on a lengthy lease.

The above is the audio-video commissioned from myself by Emma Rushton and Derek Tyman as part of their Flaghall installation in the Where Do I End and You Begin exhibition in the City Arts Centre, Edinburgh 1 August-19 October 2014 as part of the Edinburgh Arts Festival. (Click on ‘Vimeo’ and watch full screen for best effect).The exhibition features work by artists from across the Commonwealth exploring and interrogating the ideas, ideals and myths that underpin notions of community, common-wealth and the commons. This audio-video lecture explores these themes in the context of Scotland and the British Empire and invites the viewer to consider how we can reverse centuries of colonialism and ideas of exclusive possession and move toward a world in which our common-wealth is reconstituted and governed for the wellbeing of all.

There are three events on this Saturday 30 August discussing the UK work in the exhibition including a talk by myself at 2pm. Below is the extract from the exhibition catalogue.

CONQUEST, COLONIALISM & THE COMMONS

The Commonweal is an old Scots term meaning “wealth shared in common for the wellbeing of all”

In 1884 the Earl of Rosebery visits Australia and asks, “Does the fact of your being a nation… imply separation from the Empire? God forbid! There is no need for any new nation, however great, leaving the Empire, because the Empire is a Commonwealth of Nations“.

On the 22nd of August 1770, at Possession Island off the north coast of Australia, Captain Cook writes in his journal, “I now once more hoisted English colours and in the Name of His Majesty King George the Third, took possession of the whole Eastern Coast  .. together with all the bays, harbours, rivers and islands.”

In 1949, the people of Alyth in Perthshire, Scotland march to the top of the Hill of Alyth to destroy the fences that have been built to enclose their common land.

In 1955, the UK government decides to annex Rockall – a small rock in the North Atlantic around 187 miles west of St Kilda. Captain Connell of HMS Vidal is given the following order by the Queen. “On arrival at Rockall you will effect a landing and hoist the Union flag on whatever spot appears most suitable or practicable and you will then take possession of the island on our behalf.”

In May 1982, Eddie Mabo, on behalf of the Meriam people from the Mer Island in the Torres Strait off the north coast of Australia launches a legal action challenging the claim of the Crown to ownership of his land.

On the 3 June 1992, by a majority of six to one, the High Court upholds the claim of the Meriam people and overturns the legal fiction that the land of Australia was ‘terra nullius’ before colonisation.

On Tuesday this week, the Court of Session published its opinion by Lord Tyre on a petition brought by East Renfrewshire Council (4.2Mb pdf) seeking authority to build a school on common good land in Cowan Park, Barrhead. Given past blogs on the topic of common good and, in particular, the controversy over the Portobello Park proposals, I felt it would be useful to provide a brief response and commentary on this latest decision by the Courts.

East Renfrewshire Council plans to build a new high school in Cowan Park, Barrhead. The park consists of three distinct parcels of land (see map below). The first – areas 13/4 and the northernmost E157/3 form the original Cowan Park. James Cowan bequeathed £10,000 in 1910 to provide a park and directed his trustees to purchase the land and convey it to the Town Council to be held in “perpetuity as a public park … for the use and enjoyment of the inhabitants of the Burgh of Barrhead in all time coming.” In 1969 part of this original park (the northernmost area E157/3) was conveyed to the County Council and is the site of the current Barrhead High School.

An additional two parcels of land were added to the park in acquisitions by the County Council in 1969 (E157/3 to the south outlined in blue) and the Town Council in 1969 (area 13/8 outlined in yellow).

Of these parcels, only area 13/4 is common good land. Furthermore, given the terms of the bequest, it is inalienable common good land. This means that, unlike alienable common good land (which the council can dispose of as its sees fit), any disposal of such land requires the consent of the courts. (1) It was with this intention that East Renfrewshire Council petitioned the Court of Session in April 2014.

At this point it is worth revisiting the Portobello decision very briefly. In that case, the City of Edinburgh Councils wished to appropriate (that is, to use common good land for another purpose but to retain ownership) land in Portobello Park to build a new school. An action was taken against the Council by Portobello Park Action Group and the Court of Session found (on appeal to the Inner House) that the Council had no powers to appropriate inalienable common good land. This was because the Local Government (Scotland) Act 1973 which governs such matters is silent on the question of appropriation in these circumstances and thus the common law prohibition on appropriation of inalienable common good land prevails. The City of Edinburgh Council resolved the matter by seeking specific authority under a private act of Parliament to appropriate the necessary land.

The Cowan Park case turned on the question of whether the proposals for building a school constituted a disposal or an alienation. If such an arrangement is regarded as a disposal, the Court has the power to decide whether to grant authority to proceed. However, if the arrangement is considered an appropriation, the Court has no locus since there is no provision in the 1973 Act for it to take a view.

The plan is to lease the land to a special purpose vehicle which, in turn will sub-lease the site back to the Council and construct the school. The Court in this case found that, since the Council would retain possession of the land as the sub-leaseholder, there was no disposal involved and that “the petitioner’s proposals are properly to be characterised as appropriation.” (2) Thus, “as there would be no disposal, the petition must be refused as unnecessary“.

So where does that leave East Renfrewshire Council?

Well, the Court cannot provide the consent that was requested and thus there are three options available.

The first would be to seek the same remedy as the City of Edinburgh Council in the Portobello case and petition the Scottish Parliament for a private Act of Parliament.

The second would be to build the school on the southern half of the park which is not common good land (though I understand other factors mean that this is not a suitable site).

The third would be to do what South Lanarkshire Council did and go ahead and build the school anyway. As outlined in a previous blog, the Council in this case, having petitioned the court and having been advised that the court had no locus (just as in the present case), nevertheless went ahead and built Holy Cross High School. No-one raised an action against the council. Had anyone done so, then, the court would most likely have found that the Council was acting beyond its powers. This is exactly what happened in the Portobello case because, whilst the courts have no locus to approve such an action at the outset, they do have the power to rule it unlawful should it be contemplated AND someone takes an action against the Council.

In conclusion, this latest case demonstrates why, in my view common good law is in need of modernisation. The Community Empowerment Bill proposes some modest reform on transparency but fails to address the underlying complexity and the need for the law to be updated to reflect modern needs.

NOTES

(1) – In my opinion Lord Tyre is wrong at [5] where he claims that “As a general rule, a local authority has no power to dispose of common good land or to appropriate it for other uses“. On the country, if the land is alienable it is free to dispose of it or appropriate it. See Ferguson, Common Good Law (Avizandum) at foot of page 88.

(2) Lord Tyre at [16]

It has been a rocky road for the Land Reform Review Group which was established in July 2012 and whose final report The Land of Scotland and the Common Good was published this morning (Low Resolution version – 13Mb pdf – on Scottish Government website here and 52Mb high resolution version on Scottish Government website here or my website here). A Scottish government press release is here. Response from Community Land Scotland here. Lesley Riddoch comments here. Scottish Tenant Farmers Association reaction here. Scottish Gamekeepers’ Association reaction here. Scottish National Party reaction here. Scottish Land and Estates reaction here. Community Energy Scotland here. Scottish Labour Party reaction here. Scottish Green Party reaction here. Lord Shrewsbury reaction here. Calum Macleod blog here and West Highland Free Press analysis here. Knight Frank reaction here. CKD Galbraith reaction here. Pinsent Masons reaction here. Brian Wilson reaction here. John Muir Trust here. Bell Ingram reaction here. Savills reaction here. Gillespie Macandrew reaction here. Scottish Conservative & Unionist Party reaction here. Scottish Liberal Democrats reaction here. Evidence submitted to Scottish Parliament’s Rural Affairs Committee here.

This blog provides a brief initial reaction to the report.

By the time the Group published its interim report in May 2013, two of its three members had resigned and the report itself was widely criticised (e.g. see here, here and here). The Group was then strengthened by an additional member and the appointment of a specialist adviser. This re-configured group has survived intact with the exception of one of the advisers, Andrew Bruce-Wootton, who resigned in April 2014.

Much of the turmoil reflects the fact that this is a controversial subject, it is complex and it has received scant academic or political attention for over a decade. The Final Report is thus something of a minor triumph. It is more comprehensive than anything that has gone before and it is detailed and thorough in its description and analysis of the topics covered. The 62 recommendations are wide-ranging. Some will be regarded as radical and perhaps even controversial in certain quarters but there is in fact not one which is anything other than plain common sense and certainly none that citizens of most other European countries would be surprised at.

The group’s remit was to make proposals for land reform measures that would,

1 Enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;

2 Assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development;

3 Generate, support, promote, and deliver new relationships between land, people, economy and environment in Scotland.

If these ambitions are to be realised then big changes are needed in Scotland’s archaic and regressive system of land tenure. As the opening paragraph of the preface states,

This Report is entitled “The Land of Scotland and the Common Good”. It reflects the importance of land as a finite resource, and explores how the arrangements governing the possession and use of land facilitate or inhibit progress towards achieving a Scotland which is economically successful, socially just and environmentally sustainable.

Plain common sense.

What is notable about the report is that it helpfully defines what it means by land reform. For that past 15 years, politicians and others have been guilty of framing land reform as something exclusively to do with rural Scotland, with the Highlands and Islands in particular and with the affairs of tenant farmers and communities in these places. These are important elements to be sure but, as the report’s title indicates, the land of Scotland is  the totality of the sovereign territory. This is emphasised by the image on the cover which shows the legal boundaries of Scotland. (1)

The group’s defines land reform as

measures that modify or change the arrangements governing the possession and use of land in Scotland in the public interest.”

This relates to urban land, rural land and the marine environment. The recommendations reflect this comprehensive agenda. They include longer and more secure tenancies for private housing tenants, new powers of compulsory purchase, the establishment of a Housing Land Corporation to acquire land, new arrangements for common good land, the devolution of the Crown Estate, removing exemptions from business rates enjoyed by owners of rural land, giving children the right to inherit land, prohibiting companies in tax havens from registering title, protecting common land from land grabbing, reviewing hunting rights, limiting the amount of land any one beneficial owner can own and introducing a wide range of new powers for communities to take more control of the land around them in towns, cities and the countryside.

Of the 62 recommendations, 58 are within the full devolved competence of the Scottish Parliament. The four that are reserved relate to inheritance and capital taxation, State Aid rules and the Crown Estate – all topics which the Scottish Affairs Committee are examining in a parallel inquiry.

It is notable that this report is the first ever report into the topic since the establishment of the Scottish Parliament in 1999. It’s early work was informed by the Land Reform Policy Group, chaired by Lord Sewel which published its final report in January 1999. In the foreword, Lord Sewel wrote,

“It is crucial that we regard land reform not as a once-for-all issue but as an ongoing process. The parliament will be able to test how this early legislation works and how it effects change. They will then have the opportunity to revisit and refine their initial achievement…..These present recommendations are therefore by no means the final word on land reform; they are a platform upon which we can build for the future”.

However, as the Land Reform Review group note in their own Preface,

As a time limited Review Group, we are acutely aware that Government approaches to land reform, when there has been a political will to engage with the issue at all, have traditionally been characterised by periodic review and piecemeal intervention. Given the importance of land reform to delivering societal aspirations, we recommend that the Scottish Government regard land as a separate, well supported area of policy, to ensure that the common good of the people of Scotland is well served by its land resources.

As the report notes,

The first session of the Scottish Parliament had a land reform programme established by the Scottish Executive. In contrast, since 2003, there has been no land reform programme. The land reform measures after 2003 have therefore tended to be specific responses to particular issues, rather than part of any wider land reform strategy or programme.

Hopefully, this report will serve to shift the baseline – to move the agenda forward and to deliver a consensus that these recommendations provide the minimum necessary to re-frame and modernise Scotland’s stystem of land governance to one which is people-centred and in which the land of Scotland serves the common good of all of its citizens. The report does not cover a range of important topics but if all of its recommendations were to be implemented over the coming 5 years, we would be living in a country with a far more democratic and equitable distribution of land and power. The report concludes thus.

The Group recognises that this is a critical time for the future of Scotland. Along with the people of Scotland, land is the most important resource in the nation. How it is owned, managed and used is of fundamental importance to Scotland’s future prospects, whatever constitutional direction the country chooses. The Group believes that we have reached a critical point in relation to land issues. We offer the Scottish Government, a range of recommendations, summarised in Section 34, and we encourage it to be radical in its thinking and bold in its action. The prize to the nation will be significant.

UPDATE 1240 23 May

The Scottish Government’s press release contains this statement from Minister for Environment and Climate Change Paul Wheelhouse.

“I am pleased to read the recommendations on improving the availability of land, both rural and urban, and the need to increase access to rural housing, these are issues that will have a direct impact on many people’s lives. The Group have also highlighted the need to address transparency of land ownership in Scotland which I believe is crucial to taking forward this agenda.

“I also welcome that the benefits of community ownership have been highlighted within the report. We have always said that community ownership empowers communities, sparks regeneration and drives renewal which is why we have an ambitious target to get one million acres of land into community ownership by 2020.

“I am pleased to announce that I agree with the Review Group’s recommendation for a working group to develop the strategy for achieving the million acre target and I will shortly be forming a working group to achieve just that.

“Land Reform not just about land ownership but how that land is used and managed and the benefits it can bring to the people of Scotland. I look forward to considering how the recommendations in this report can further benefit the people in Scotland through the relationship with our land.”

But in the Notes to Editors, the release states that,

The Scottish Government recently completed a review on business rates. This Government is committed to maintaining the most competitive business tax environment anywhere in the UK through our business rates policies and we can confirm there are no plans to make changes to the position of agricultural business rates relief.

So a major Review is published and within 3 hours, the Government flatly rejects a key recommendation because of a previous review that was not concerned with land reform – a statement not even consistent with its statement at the time.

In November 2012, the Scottish Government launched a public consultation on how the non-domestic rating and valuation appeals systems can support businesses and sustainable economic growth and on how to improve transparency and streamline the operation of the rating system. As the analysis of consultation responses noted:

Agricultural land and sporting estates are exempt from business rates and the comments on this issue were mixed with some supporting the exemption because of the benefit to the rural economy, and others opposed because they felt all businesses should be treated in the same way.

In its response to the consultation, the Scottish Government said that it had “committed to use the period until the next revaluation in 2017 to conduct a thorough and comprehensive review of the whole business rates system.” In relation to existing reliefs and exemptions, the consultation response said: “All rates reliefs will be kept under regular review to ensure that benefit is directed where it is most needed. Although views were mixed, the Scottish Government has on balance decided that all current exemptions provided, including to agriculture, should be retained.”

So, despite saying today that there are no plans to make changes, in September 2013, Ministers said that the “period to 2017 would be used to conduct a thorough and comprehensive review of the whole business rates system“. Confused?

NOTES

(1) Note the controversial sea boundary off Berwick where the sea boundary as defined by the Scottish Adjacent Waters Boundaries Order 1999 contrasts with the boundary of Scotland’s civil jurisdiction.

Some Minor Gripes

The footnotes are a mess. One simply states “SAC ref” Others note speeches by give no reference other than a date. Another is “Wightman (blog re commonty at Biggar)” – no link and it is Carluke not Biggar. Hopefully these can be sorted.

The recommendations are not numbered.

There is no executive summary.

The good citizens of the Royal Burgh of Auchterarder face being banned from walking across their common land because of the risk that they might choose to stop and gaze across at the Ryder Cup golf competiton taking place on the neighbouring golf course at Gleneagles. Safety and security are being cited as reasons why part of the Auchterader Golf Course (which is part of the common good land of the Burgh) and a public footpath are to be closed for the duration of the competition.

This is a bizarre state of affairs. Let me explain why.

The right of responsible access to land is enshrined in Part 1 of the Land Reform (Scotland) Act 2003. It was always recognised, however, that there were circumstances in which areas of land could and should be exempted from these rights. If land was to be used for an agricultural show, a sporting event or a pop concert where attendees were to be admitted on payment of a fee, then it is perfectly proper that the public’s right of access should be suspended for a defined period of time. Section 11 of the Act provides that local authorities can make orders exempting land and where it is to cover a period of more than six days then Scottish Ministers must approve and the public has a right to submit objections.

The Act also placed a duty on local authorities to define Core Paths – routes along which the public could feel comfortable walking and enjoying their access rights. But Section 11 did not provide any means for exempting Core Paths and so, in 2013, the Scottish Government proposed the Land Reform (Scotland) Act 2003 (Modification) Order 2013 which would amend Section 11 and allow Core Paths to be closed because of animal disease outbreaks or because of an event taking place. Draft Guidance states that such exemptions would be limited to events where paid admission was charged and in the interests of safety and security involving “competition participants and spectators.”

The Draft Guidance noted that “We know that there will be requests for section 11 exemptions for two major events in 2014 – the Commonwealth Games and the Ryder Cup.”

So far, so good.

It is perfectly reasonable for the organisers of the Commonwealth Games to seek to exempt the shooting range at Barry Buddon from the legal right to walk across it and along any core paths for the duration of the Games. It is also reasonable in the context of the Ryder Cup venue at Gleneagles.

But it is one thing to seek to exempt land over which you have control and are managing for the purposes of an event open to the paying public. It is quite another indeed to seek to suspend the public’s right of access over other land – particularly over common land that belongs to the people of Auchterarder.

And that is what is being proposed in Auchterarder.

In a paper prepared for the Auchterarder Common Good Fund Committee on 26 February 2014, a map shows the extent of land over which the organisers of the Ryder Cup wish to apply for an exemption including Core Path AUCH/35/1 (see maps below).

It notes that the north east boundary of the Gleneagles land “abuts Auchterarder Golf Course and people standing on the Auchterarder course side of the boundary might be able to view the Ryder Cup action.”(1) The image below shows the boundary.

 

Oh dear! Folk might get to see some golfers without paying….

The report goes on to say that discussions are underway between Ryder Cup Europe, Police Scotland, Perth & kinross Council and Auchterarder Golf club “about how public order and safety can be maintained at this area during the event, as there is a risk that uncontrolled numbers of people may try to view the event from this location.”

If no restrictions are put in place there is a potential for a build up of people, seeking to use the Core Path/Right of Way in order to view the event, which creates a safety, security and public order risk.”

In order to obtain a Section 11 Order, an application has to be made to Perth & Kinross Council by the organisers. The Ryder Cup is a partnership between the Scottish Government, Ryder Cup Europe and Diageo. Such an application will be for a period of greater that six days and thus needs to be referred to Scottish Ministers. The public have the right make representations and objections and Ministers may hold a public local inquiry if they wish.

On 11 December 2013, the Minister for Environment and Climate Change, Paul Wheelhouse acknowledged such an application during evidence to the Rural Affairs, Climate Change and Environment Committee (Col. 3119).

I can assure the committee that if any proposal comes before me, I will take a balanced view on the need to ensure public access to land under the Land Reform (Scotland) Act 2003 and the strong sentiment across Scotland about ensuring the right to responsible access, while at the same time protecting the public interest and public safety and ensuring the security of the events themselves. It is a balancing act, but we will take all those matters into account.”

Scottish Ministers will thus be the decision-maker in an application for a Section 11 Order to which they (as one of the three organisers) are a party – which is in itself interesting.

It appears to me that this whole process is a gross over reaction to what is a real but managable possibility of public order problems. I am no expert in the law on such matters but I would be surprised if there were not already powers available to the police to deal with such an eventuality. In any event, exempting this land from access rights does not in itself prohibit anyone walking over it and thus potential public order issues may still arise. (2)

So here is what I think should happen.

If an application is made, the citizens of Auchterarder should register their objections to Scottish Ministers and the application should be refused.

Auchterarder Community Council should then, in association with the police and the Council, set up a viewing zone open to the public with associated refreshments and public entertainment. Mini-golf can be laid on for children (and adults). Spot the celebrity golfer competitions can be organised. Information can be provided about the history of the commons of Auchterarder. Such an event would be free but ticketed so as to avert any security and public order problems.

Commons are for the people and not for corporate elites.

 

(1) Auchterarder Common is leased to the Auchterarder Golf Club until May 2075.

(2) It is not commonly understood that Part I of the Land Reform (Scotland) Act 2003 confers rights which are there to be exercised and relied upon as people choose. Over areas of land where the rights do not apply (by being exempted from the scope of Act or by temporary suspension via Section 11), the Act does not prohibit or ban the public. In such circumstances they are, in effect, subject to the common law as it applied before the Act came into force.

Happy New Year!

The first blog of 2014 concerns the Kilngreen in Langholm and of how recent dealings raise concerns about the stewardship and governance of such an important area of community-owned land. It is a rather long blog but I hope that by reading it more folk are encouraged to research their collective land rights. I am grateful to Bill Telfer, a resident of Langholm, for research assistance.

In March 2013, I was invited to give a talk in the Crown Hotel, Langholm on land rights and burgh commons. In preparation for the talk, I undertook some quick research on the town’s common lands and quickly realised that I had a number of unanswered questions. After the talk, a number of us repaired to the bar and spent the rest of the evening discussing these. Prominent in our conversation was the legal geography of an area of land known as the Kilngreen and the role of the Duke of Buccleuch. Things became more interesting when we learned that some people had been advised not to attend my talk.

We decided to investigate matters further and what has emerged is a story of how powerful landed interests not only exerted considerable influence in towns like Langholm (which is the only enclave of land not owned by Buccleuch for many miles around) but continue today to exercise hegemonic influence on local political processes.

The Kilngreen is a seven acre parcel of common land to the north of Langholm. It was the site of the Langholm Summer or Lamb Fair held on the Kilngreen when townsfolk engaged in wrestling, horse-racing, greasy pole climbing and chasing the well-soaped pig (a traditional Borders games). The land forms part of the common lands of the town as narrated in the Proclamation of the summer fair.

Now, gentlemen, we are gaun frae the Toun,
And first of a, the ancient Kilngreen we gan roun;
It is an ancient place where clay is got,
And it belongs to us by Right and Lot;
And then from there the Lang-wood we gan thro,
Whar every ane may brackens cut and pou;
And last of a we to the Moss do steer,
To see gif a oor Marches they be clear;
And when unto the Castle Craigs we come,
A’ll cry the Langholm Fair and then we’ll beat the drum.

Langhom was created a Burgh of Barony in 1621 and from 1643 until 1892 the Duke of Buccleuch became feudal superior and exercised considerable power over the citizens. Notwithstanding the abolition of his hereditary jurisdiction in 1747 and the establishment of a police burgh in 1845, he continued to appoint a baillie and the magistrates of the burgh until 1892 when, under the Burgh Police Act, a Town Council was established. In the report of the inquiry into Municipal Corporations in Scotland of 1833, Langholm was stated to belong to that class of burgh “where the dependence upon the superior subsists unqualified and where the magistrates are appointed by him.”

The original 1621 Charter had been conferred by James VI to the Earl of Nithsdale, Lord Maxwell and in 1628 Maxwell entered into a feu-contract (a heritable lease at a fixed rent) with ten men from his own family in which he gifted each one merkland within the lands of Arkinholm for an annual feu-duty of 25 Merks each. This conveyance made these ten men Langholm’s first Burgesses. They were obliged by this contract, to build “Ilke ane of them a sufficient stone house on the fore street, builded with stone and lyme, of two houses height at the least, containing fourty foots within the walls of length, eighteen foot of breadth, twelve foot of height”. The building of these houses heralded the birth of the town of Langholm.

Meanwhile, the commonty of Langholm was situated to the east of the town and occupied most of the Whita Hill. By the mid 18th century disputes had arisen between owners of the Ten Merklands as to their rights over the commonty and in 1757 one of them, John Maxwell, raised an action against the other owners under the Division of Commonties Act 1695 to divide the common lands.

After due legal process, on 24 February 1759 the commonty was divided between John Maxwell of Broomholm, John Little and the Duke of Buccleuch. The court ruled that the common moss belonged inalienably to Langholm and was to be left undivided together with the loan, 20 feet wide, leading to the Moss. The tenants of the Ten Merklands and the burgesses of the town of Langholm possessed the right to lead stones and win fuel from the Common Moss and had also free access to it.

As a result of a separate inquiry (and central to our story), the court declared that the the Kilngreen, with rights of pasturage, “had belonged immemorially to the town of Langholm” and that “the limits and boundaries of these various Common lands should hereafter be as the Commission had awarded.”

The marches were described in sworn testimony to the Commissioners as follows,

The march begins at the little Clinthead, where a pit was made, and from thence to another pit made at the corner of Johnathan Glendinning’s park nook, and from thence to another pit made at the side of a dyke at Janet Bell’s pathhead, and from thence along the dyke on the head of the Green Braes to a pit made at the lower ledge of the bridge, and along the said bridge to another pit made where the old watercourse was, and from thence to another pit near the foot of the mill dam, and from thence by pits made along the old watercourse, until it joins with the water of Esk at the foot of the old Castle garden, and down Esk till it join with the water of Ewes at the little Clinthead, where the said marches began.”

The award of the common moss and Kilngreen to the citizens of Langholm placed an obligation on the burgesses to ensure that the boundaries of the towns lands were clearly delineated and cairns were built and pits dug to mark them. It also led to the establishment of the common riding of the marches of Langholm, an annual custom that continues to this day as narrated in the proclamation above. It was decided to hold it on the day after the Langholm Summer Fair – at one time Scotland’s largest lamb sales and so began over 250 years of tradition. In 1979, the film-maker, Timothy Neat in collaboration with Hamish Henderson captured the essence of the occasion in his film “Tig, For the Morn’s the Fair Day”.

An excellent illustrated account of the 2013 Common Riding can be found on Tom Hutton’s Tootlepedal blog.

Langholm Common Riding Image: Tom Hutton

At first the annual inspection was carried out by individuals whose duty it was to “see gif a the marches they be clear” and to “report encroachments, clean out the pits, repair the beacons and generally protect the interests of the people”.

The first person to perform the inspection of the boundaries was “Bauldy” (Archibald) Beatty, the Town Drummer, who walked the marches and proclaimed the Fair at Langholm Mercat Cross for upwards half a century. In 1816 the marches were inspected on horseback for the first time and the Riding of the Common began. The first person to ride on horseback over the Marches was Archie Thomson, landlord of the Commercial Inn. In the previous year, Thomson, like “Bauldy” his predecessor, went over the boundaries on foot alone, but in 1816 he was accompanied by other townsmen – John Irving, of Langholm Mill and Frank Beatty, landlord of the Crown Inn being probably the most prominent. These local enthusiasts, sometimes referred to as the “Fathers of the Common Riding” were also responsible for introducing horse-racing, which took place on the Kilngreen until 1834, when the races and sports were transferred to the Castleholm across the river. (1)

Cumberland Wrestling at Langholm Common Riding Fair Games Image: Tom Hutton

****************

One might expect the legal record of ownership of the Kilngreen to reflect this clear and unambiguous history. However, what is revealed is something else entirely.

In 2009, a small building on the Kilngreen (the former tourist office) was sold to Buccleuch Estates Ltd. The deed transferring ownership of the tourist office from Dumfries and Galloway Council to Buccleuch Estates Ltd. (Land Certificate and Plan) reveals that the Kilngreen, far from having been owned by the town since time immemorial (as the court ruled in 1759) was actually gifted by the Duke of Buccleuch and Queensberry to the Provost, Magistrates and Councillors of the Burgh of Langholm in 1922 (we will return to this matter later).

Here is how the Eskdale & Liddesdale Advertiser reported the Langholm Town Council meeting on 1 May 1922.

LANGHOLM TOWN COUNCIL ORDINARY MEETING

Gift of the Kilngreen

Provost Cairns said he had been approached personally by the Duke of Buccleuch, and also Mr Milne Home, offering the Kilngreen to the town of Langholm, and he had been requested to approach the Council privately on the matter. Since then, he had received the following letter:

“His Grace has for some time past had under consideration the gifting of the Kiln Green to the Town Council. Owing to the uses to which the Kilngreen is put, and the control which it is essential to exercise over the travelling caravans which occupy the ground from time to time, the Town Council as a public authority, is already closely concerned.

The Kilngreen, as you may be aware, measures 2,838 acres, and what His Grace desires to convey to the Town Council is:

1. The whole title to the Kilngreen so far as His Grace has right thereto, with authority to levy and collect such dues as  may be exigible from such subjects.

2. The area conveyed would be that shown upon the OS Sheet XLV.II, Dumfriesshire, Second Edition, 1899, as No.333, and measuring 2.838 acres, bounded on the West by the Ewes Water, and on the East partly by the Townhead Toll and the adjoining garden.

3. His Grace would reserve free and unrestricted access to the Toll House across and over the Kilngreen either for carts or foot passengers.

4. As it is His Grace’s desire that the ground should be maintained in all time coming as an open space for the use of the inhabitants of Langholm, the only reservation made in the gift is that no buildings of any description should be erected upon the ground without the consent of His Grace or his successors in title, and that the Town council should not have power to sell the ground or do any act which might divert it from the public use.

5. His Grace will grant a disposition to the Town Council, the draft of the disposition being submitted to them in the first place. This will enable the Council to complete their title in any way they may think best’’.

He had much pleasure in moving that the Council accept His Grace’s gift, and that they advise Mr  Milne Home accordingly. Up to now there had been a certain amount of dual control over the Kilngreen which was not satisfactory, but now the inhabitants of Langholm would have full use of it as a recreation ground for all time coming, and he felt sure the town would greatly appreciate His Grace’s kindness. He had, therefore, much pleasure in formally moving the acceptance of His Grace’s generous gift, and that the best thanks of the Town Council and the inhabitants of Langholm to be conveyed to him.

Councillor E. Armstrong, in seconding, said he was sure the general public would greatly appreciate His Grace’s generosity. The Kilngreen had always been a touchy point as to ownership, but now that it had been handed over to the town they would say with all truth:

 “It’s  an ancient place where clay is got,

An’ it belangs to us by right and lot.”

But if the Kilngreen belonged to the people of Langholm from time immemorial, what on earth was the Duke doing gifting it to the Town Council and what was the Town Council up to in accepting it in such a sycophantic manner (His Grace, generosity, kindness etc.)? How in fact did the Duke himself come to own the Kilngreen? This latter question is answered in the 1922 deed.

The deed, recorded on 14 November 1922 opened,

 “I, John Charles, Duke fo Buccleuch and Queensberry, K.T., heritable proprietor of the subjects hereinafter disponed, considering that as indicating my feelings of goodwill towards the inhabitants of the Burgh of Langholm, I am desirous of devoting to their perpetual use, benefit and enjoyment, the area or piece of ground hereinafter described as a pleasure or recreation ground, and I have the pleasure in making the underwritten perpetual grant or disposition of said subjects in favour of the Provost, Magistrates and Councillors of the said burgh of Langholm for the use, benefit and enjoyment of the inhabitants of the aid Burgh in all time to come…..”

“..which area or piece of ground is part of ALL and HAILL the lands of Langholm and others in the County of Dumfries particularly described in the Notarial Instrument in my favour recorded at length in the Division of the General Register of Sasines applicable to the County of Dumfries……the twenty second day of June, Nineteen hundred and fifteen.”

A Notarial Instrument is a declaration of facts drawn up by a Notary Public. The basis upon which the Duke of Buccleuch claimed to be the owner of the Kilngreen rested upon a 1915 re-statement of the Barony of Langholm charter granted to the Earl of Buccleuch in 1643 which includes

“the town and lands of Cannoby, the lands of Toddscluegh and Lambscleugh, the west side of the lands of Rowanburn, the lands of Newtown, Baitbank, the lands of Weitlieholm, lands of Archerlie, lands of Lochbushill……”

and so on for over 32 pages. With regard to Langholm, the deed narrates,

“..the lands of Langholm, with Fortalices, Manor Place, Milns, Fishings and Pendicles thereof called Holmhead, and Burgh of Barony of Langholm, with the weekly Market and free Fairs thereof, with customs, liberties, &c. thereof….”

So the Duke of Buccleuch was asserting that, in fact, he had owned the Kilngreen since 1643. How can this claim be reconciled with the court declaration of 1759? One clue is provided by a court case in 1816 – a significant year in the history of the Kilngreen and the common riding when the marches were inspected on horseback for the first time.

Local historian, the late David Beattie, recounted the case in the Eskdale and Liddlesdale Advertiser.

Court Battle Over Kilngreen – Year 1816

A lot of interest has been placed recently in the ownership of the Kilngreen and, as all Langholmites know, the battle for its ownership has been a long and prolonged one. We thought that the following story of a court case in 1816 would be of interest to locals.

In Dumfries Sheriff Court before Sir Thomas Kirkpatrick, William Beattie, George Graham, Archie Thomson, and David Hounam were charged with “mobbing and rioting on Friday night, the 15th day of December, 1816”. The libel set forth that the four defendants entered an enclosed piece of ground on The Kilngreen, belonging to Archibald Scott, writer, rooting up and carrying off a number of young trees. These trees were taken to one of the inns in Langholm by Beattie, who exhibited the trophies.

On the following day, the services were obtained of the “common drummer of the village of Langholm”, and a procession was organised, many of those who took part being armed with spades and long poles. “This irresponsible regiment” says the report “was led by William Beattie, who assumed command, and the second visit was paid to the garden enclosure, when the remaining young trees were pulled up, fastened to the ends of poles, and carried through the village in triumph”.

As can well be imagined, this sanguine battle for what was considered the town’s rights, now being fought out in this court at Dumfries, created considerable interest and lasted three days.

The prosecution claimed that the ground in question was the property of the Duke of Buccleuch who granted the present owner permission to enclose it in the year 1812. On the strength of this sanction, Mr. Scott carried out the enclosure and several trees were planted. Two years later he went further. Scott began cutting a trench for the foundation of a wall outside the line of trees which was assumed to be the new boundary. It was then that the turmoil began. Public feeling ran high. Such unwarranted action was regarded as a flagrant encroachment on the Commonty of the Kilngreen, consequently the wall was never built. Nevertheless, a good deal of indignation kept brewing until the storm broke which had its sequel in Dumfries Court of Law.

It was reckoned a glorious victory by the townfolk, who stuck to the letter of the Proclamation “The Kilngreen”, they said “is an ancient place where clay is got, An’ it belongs tae us by richt an’ lot”.

In their defence it was claimed that the inhabitants of Langholm had been in the practice of riding the marches of the different commonties once a year from time immemorial and contended that they were entitled in the exercise of this right to remove the trees planted by the pursuer.

After prolonged argument and debates, the Sheriff found the defendants liable for the damage done and the expenses of the action. The four men implicated were ordered to pay £20 each, which they did with the exception of David Hounam who indignantly refused to pay one penny. He was sent to Dumfries Jail where the refractory weaver paid the penalty (but not in hard cash) for his alleged misdeeds.

Billy Young, in his 2004 book “A Spot Supremely Blest” treats these events as a bit of a joke. But this is 1816. Here were some young men whose fathers no doubt had been alive when Langholm’s common lands were affirmed by the highest court in the land in 1759. One of the defendants was none other than Archie Thomson – the first person to ride the marches of Langholm’s commons that year. As the landlord of the Commercial Inn he would probably have been someone of standing in the community. Seeing evidence of appropriation of the Kilngreen, Thomson and his colleagues did their duty in defending the town’s land from encroachmant.

The so-called ‘’mobbing and rioting’’ is known about in Langholm but is given a rather low profile. The direct action of these Langholm men who marched up the High Street to the Kilngreen carrying spades, with the Town Drummer to the fore to prevent the attempted enclosure, then uprooting  the young trees and tying them to the end of long poles and returning down the street were engaged in as militant a demonstration of public feelings as one can imagine. Indeed it is out of this event that the  Common Riding as an event took shape, starting with militant direct action and still containing much of that spirit.

Aside from the horses, he main component of the Common Riding is the flute band and its drum (descendents of the role played by the Town Drummer) together with the foot procession. The Common Riding emblems ( the spade, the thistle, the barley bannock/saut herring, the floral crown) are brandished triumphantly on poles.

Langholm Common Riding Emblems – the spade, the barley-bannock, the crown & the thistle 1957.
Source: Langholm Archive George Irving collection.

In 1792, Thomas Muir had established the Friends of the People Society and four years later John Baird and Thomas Hardie led the Radical War of 1820. This was a time of revolutionary fervour. A Tree of Liberty had been planted in Langholm’s Market Place in the 1790’s. The reaction of Thomson and his friends to the encroachment and the subsequent attitude of the Sheriff of Dumfries, Sir Thomas Kirkpatrick can plausibly be viewed in this light.

The Duke of Buccleuch remember continued to appoint the magistrates of the burgh until 1892 and they no doubt would have felt obliged to pursue a prosecution. The consequence of their failure to defend the interests of their townspeople was that their successors (Provost Cairns and Councillor Armstrong) fell over themselves a little over 100 years later in 1922 to prostrate themselves before “His Grace’s” generosity and kindness in gifting them land they already owned.

Langholm Common Riding. Crossing the Ewe from the Kilngreen to the Castleholm. Image: Tom Hutton

It is unclear what motivated the Duke to gift the land in 1922. It is evident that he wanted some solution to the issue of travelling people. It is also probable that he and perhaps the Town Council realised that, although the Kilngreen was owned by the town, there was in fact no recorded title in the Register of Sasines. Quite why this was apparently never done between 1759 and the 1816 incident remains unclear but as feudal superior, Buccleuch was the obvious person to rectify the omission…….which brings us to back to the sale of the tourist office.

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In the 1922 deed of gift, the Duke of Buccleuch stipulated that the Kilngreen was “for the use, benefit and enjoyment of the inhabitants of the aid Burgh in all time to come”. He also imposed a condition that the land could not be sold without his consent. (2)

In 1999 Dumfries and Galloway Tourist Board vacated the tourist office and it lay vacant for a decade before the Council’s Resources Committe met in April 2009 to conclude plans for its disposal. The Council wanted to sell the building as it was surplus to their requirements (though note that the beneficial owners are the people of Langholm the decision was never considered by any common good fund committee). Due to the restriction on sale, Council officials had approached Buccleuch Estates Ltd. for a Minute of Waiver – a legal agreement to waive the condition. Buccleuch refused on the grounds that a sale on the open market “would not be consistent with the intentions of the Buccleuch family when they gifted Kilngreen to the inhabitants of the Burgh iof Langholm”.

Buccleuch did indicate, however, that it would be interested in “buying this property back from the council with the intention of putting it to some form of community use, thus being consistent with the family’s original intention”. The proposal was to lease the building to the Langholm Initiative as a Moorland Education Centre.

The Council agreed to this. The purchase price remained the “open market value” but by now the “market” had been reduced to one party – Buccleuch Estates Ltd. – and a price of £500 was agreed. The sale went through in September 2009 (Land Certificate and Plan).

As the Resources Committee report makes clear, one of the reasons that the Council wanted to dispose of the building was that it was in a dilapidated state of repair and represented an ongoing liability. But that summer a TV company arrived in Langholm and renovated the building!

The renovated former tourist office sold to Buccleuch Estates Ltd. for £500.

 ****************

So, at the end of this long tale, the Buccleuch family gifted land that was never theirs to gift in the first place, imposed conditions that tied the hands of the Burgh and which, almost a century later, the Buccleuch family exploited to refuse a waiver that depressed the price that allowed them to buy it back (having been given a makeover by TV money and local voluntary effort) at a fraction of its market value thus depriving the common good fund of a much needed capital receipt. All the while, the people of Langholm have been let down by a lack of transparency as to the land’s true ownership and by a Council that, when I asked them in 2009, reported that there were no common good assets in Langholm.

All of which is made the more galling when there were alternative courses of action available to the council.

Under Section 20 of the Title Conditions (Scotland) Act 2003, an owner of land over which there is a title condition or restriction may, after 100 years has elapsed since the burden was imposed, register a notice of termination of the burden. Thus Dumfries and Galloway Council could have called Buccleuch’s bluff and threatened to wait until 22 November 2022 and be shot of all the conditions that curtailed its freedom of action unless the waiver was granted. Until then it could have either demolished the building ot leased the site directly to the Langholm Initiative on a full repairing lease. Such a lease, of course, would require the consent of Buccleuch Estates but since they presumably consented to the Tourist Board’s occupation of the building, could not reasonably refuse a new lease. Had they done so, the Council should have gone straight to the Lands Tribunal to apply for an order to permit the lease to go ahead.

The irony of all of this is that for £500 the residents of Langholm could easily have bought back their own common good land, though they would have been quite rightly indignant at having to do so given that a little over 250 years ago the Court of Session ruled that it already belonged to them.

For that 250 years, the residents of Langholm have for a variety of reasons, been ill-served by feudal patronage, corrupt and undemocratic governance, and the inability to take decisions by themselves in their own interests over land that belongs to them. That this state of affairs has persisted this long and over a decade since the advent of devolution is a powerful reminder of how little attention has been paid to land and governance matters within Scotland.

When, in March last year I sat in the bar of the Crown Hotel, I knew nothing of its former landlord, Frank Beatty and the mobbing a rioting of which he had been found guilty in defence of the town’s land rights. On the wall of the hotel lobby is a poster narrating the history of the common riding. Those who take an interest in such matters know this history well. Over the river, in the new Langholm, is a town built on Buccluech land where “His Grace’s” interests still hold sway. Feudal hegemony is alive and well in Langholm.

Perhaps it is time for some more mobbing and rioting.

SOURCES & NOTES

Much of the history of the KIlngreen is covered by John and Robert Hyslop’s classic book Langholm As It Was published in 1912 by Hills and Company, Sunderland.

(1) The move across the water to land owned by the Duke of Buccleuch (Castleholm) is reflected in the rest of the Fair Proclamation as cited on Tom Hutton’s blog here that the Fair is to be held upon “hus Grace the Duke of Buccleuch’s Merk Lands.”

This is to give notice that there is a muckle Fair to be hadden in the muckle Toun o’ the Langholm on the 15th day of July, auld style, upon his Grace the Duke of Buccleuch’s Merk Lands, for the space of eight days and upwards; and a’ land-loupers, and dub-scoupers, and gae-by-the-gate swingers, that come to breed hurdums or durdums, huliments or buliments, hagglements or bragglements, or to molest this public Fair,they shall be ta’en by order of the Bailey and Toun Cooncil, and their lugs be nailed to the tron wi’ a twalpenny nail, and they shall sit doun on their bare knees and pray seven times for the King and thrice for the Muckle Laird o’ Ralton, and pay a groat tae me, Jamie Ferguson, Baillie o’ the aforesaid Manor, and I’ll away hame and hae a Bannock and a saut herring tae ma denner by way o’ auld style.

(2) The deed also states that “ nor shall my said disponees be entitled to erect buildings on the said subjects without the written consent of me or my successors, or to sell, dispone, or otherwise alienate, or to grant leases other than for pasturage of the said subjects, or any part thereof, or to do any other act by which the inhabitants of Langholm might be deprived of the use or enjoyment of said subjects.”