Written evidence submitted by Calum MacDonald
EXECUTIVE SUMMARY
1. The Calman Commission's recommendation that
the Secretary of State should more actively exercise his powers
of direction over the Crown Estate Commissioners in consultation
with Scottish Ministers, needs to be included in the Scotland
Bill in order to answer long-standing concern about the lack of
accountability in Scotland of the Commissioners. I propose an
amendment to Clause 18 of the Bill which would give effect to
that Calman Commission recommendation by requiring the Secretary
of State to exercise his powers of direction after consultation
with Scottish Ministers and a National Committee for Scotland.
This would enable the Crown Estate Commissioners to become more
accountable to Scottish interests, along similar lines to the
Forestry Commissioners in Scotland, while retaining their status
as a reserved body.
INTRODUCTION
2. This submission only comments on Section 18
of the Scotland Bill, which is the section that deals with the
Commission for Scottish Devolution's recommendations for the management
of the Crown Estate in Scotland.[22]
3. The Crown Estate in Scotland consists of the
Scottish Crown property, rights and interests that are managed
by the Crown Estate Commissioners (CEC) under the Crown Estate
Act 1961, as part of the UK wide Crown Estate managed by the CEC.
4. The operations of the CEC in Scotland have
long been an issue and the Calman Commission noted in their report
that, in addition to the submissions they received, concerns over
this issue were frequently raised at their public engagement events.
5. As MP for the Western Isles from 1987 to 2005,
I was aware of the deep disaffection amongst my constituents and
in communities elsewhere on the West Coast of Scotland about the
CEC's management of the Crown Estate. At the heart of all the
complaints was a perceived lack of accountability. In particular,
it proved impossible to identify any Minister who was willing
to take active responsibility for overseeing the CEC in Scotland
(although, technically, it was within the Secretary of State's
remit). This lack of practical and effective accountability has
been exacerbated by developments since devolution.
6. I was also a Scottish Commissioner on the
Board of the Forestry Commissioners (FC) from 2006 to 2009 and
Chairman of the National Committee for the Forestry Commissioners
in Scotland. The FC's response to devolution has been exemplary
by comparison with that of the CEC and holds relevant lessons
for the implementation of the Calman Commission's recommendations.
7. The FC and CEC are two bodies with similar
roles as guardians of the national land estate. In fact, both
bodies emerged in the twentieth century from the same predecessor,
the Commissioners of Woods and Forests. The Commissioners of Woods
and Forests transferred 100,000 acres to the Forestry Commission
when it was set up in 1919 and, having thus lost responsibility
for the national forests, were renamed the Commissioners of Crown
Lands.[23]
Up to the 1950s, the Secretary of State for Scotland was both
the Commissioner of Crown Lands in Scotland and the Minister responsible
for the FC. When the CEC was set up to succeed the Commissioners
of Crown Lands in 1956, that direct Ministerial role was replaced
by a Board of Commissioners explicitly modelled on the FC. Bits
of the national estate have since been swopped between the two
bodies, emphasising their similarity of purpose as administrators
of the national land estate.
8. The FC and CEC are both statutory corporations
and, while the terminology differs, in that one manages the "National
Forest Estate" and one manages "Crown land", the
origins of the estate is the same and the CEC, like the FC, is
"a public body charged with managing public resources for
public benefits".[24]
9. Both have been retained as reserved bodies.
In fact, the GB Headquarters of the Forestry Commission is in
Edinburgh and a major GB Forest Research centre is based in Roslin,
Midlothian. Although both bodies are reserved, both the FC and
the CEC have to manage the public assets owned in Scotland under
Scots law. However, while detailed provision was put in place
at the time of devolution to enable the FC to work directly with
Scottish Ministers, no equivalent arrangement has yet been put
in place for the CEC.
10. The three key innovations which facilitated
the new FC settlement after devolution were:
(a) that two Forestry Commissioners for Scotland
were to be appointed by the Secretary of State in Westminster
after consultation with Scottish Ministers—a provision closely
akin to that now contained in Clause 18 of the present bill;
(b) that the two Scottish Commissioners were
to be supported by a National Committee for Scotland whose members
would be appointed by Scottish Ministers and which would be chaired
by one of the Scottish Commissioners—see my recommendation
in paragraph 14 below; and
(c) that the funding of most of the FC's operations
in Scotland would be via the bloc grant allocated to the Scottish
Parliament—this goes beyond the recommendations in the Calman
report so will not be considered further here.
11. These innovations contrast markedly with
the steps adopted by the CEC in the period after devolution, when
they dropped the tradition of having a specifically Scottish Commissioner
who was not the Chair, ceased to manage the Crown Estate in Scotland
as a distinct unit of the Crown Estate with its own manager and
accounts, and folded their activities in Scotland into those in
the rest of the UK.
12. I believe that there is an opportunity in
the present Bill to put the Calman recommendations into greater
effect by adapting the second of the innovations described in
paragraph 10 above. This would go a very significant way towards
addressing the current lack of accountability of the CEC in Scotland
while retaining the reserved status of the CEC as recommended
by Calman Commission.
Question 1: Which of the recommendations of
the Calman Commission on Scottish Devolution are not implemented
by the Bill and why? (Q.1)
13. The Bill as drafted does not adequately reflect
the recommendation that: "The Secretary of State for Scotland
should, in consultation with Scottish Ministers, more actively
exercise his existing powers of direction and, having consulted
Scottish Ministers, should give consideration to whether such
direction is required immediately."
14. The Bill should reflect this recommendation
by the addition of a clause as follows: "a) The Secretary
of State will exercise his powers of direction after consultation
with Scottish Ministers; b) The Secretary of State will appoint
a National Committee of Scotland in consultation with Scottish
Ministers to advise on the exercise of these powers; c) the Scottish
Commissioner will chair the National Committee of Scotland."
15. This change would give proper effect to the
Calman recommendation about the more active exercise of the Secretary's
powers of direction, by providing the Secretary of State with
independent advice from within Scotland about the operations of
the CEC, as well as providing for appropriate consultation with
Scottish Ministers.
16. The change would promote the active engagement
of Scottish interests through the appointment of appropriate stakeholders
to the Advisory Committee; it would enhance accountability to
the Scottish Parliament through the requirement of consultation
with Scottish Ministers; while at the same time it would retain
the full status of the CEC as a reserved body as recommended by
Calman.
17. It would also bring the administration of
the estate in Scotland presently under the management of the CEC
more closely into alignment with the national estate that is under
the management of FC, and thus lead to a more coherent, transparent
and accountable administration of the national estate as a whole
in Scotland.
Question 3: What are the fiscal and financial
implications of the provisions in the Bill for Scotland?
18. My recommended amendment to the Bill would
have a very small financial implication for Scotland. The costs
of three appointed members of the National Committee attending
five or six meetings a year should total less than £25,000
per annum. This cost should be shared between the CEC and Scottish
Ministers, as should the task of providing the secretariat for
the National Committee.
February 2011
22 Report of the Commission on Scottish Devolution
(2009) Back
23
Crown Estate Review Working Group "The Crown Estate in Scotland"
(2007) Annex 5 Back
24
House of Commons Treasury Committee "The management of the
Crown Estate" (2010) page 2, paragraph 10 Back
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