Written evidence submitted by Andy Wightman
EXECUTIVE SUMMARY
1. The Scotland Bill provides the opportunity
to improve the governance of Crown rights in Scotland by returning
the administration of these rights to Scotland. My preferred option
in order to do this is to amend the Crown Estate Act 1961 to the
effect that it does not apply to Scotland.
INTRODUCTION
2. I am independent self-employed researcher
on land rights in Scotland and elsewhere. I am the author of a
recent book on land rights in Scotland, The Poor Had No Lawyers
(1). In recent years I have taken a growing interest in the question
of Crown property rights in Scotland and how they are defined
and administered. In 2010 I submitted written evidence to the
House of Commons Treasury Committee's inquiry into the management
of the Crown Estate (2).
3. In response to your call for written evidence
on the Scotland Bill 2010, I would like to make some observations
about Crown property rights, the proposals in the Bill relating
to the Crown Estate Commissioners (CEC), and how the Bill could
modernise and improve the administration of the important public
rights that are currently managed by the CEC in Scotland under
the Crown Estate Act 1961.
BACKGROUND
4. Crown property rights in Scotland comprise
a wide range of property rights and interests (3). The property
rights themselves are defined by Scotland's law of property. They
are thus distinct and separate from those of the English Crown.
Responsibility for the property rights themselves is devolved
and it is within within the competence of the Scottish Parliament
to legislate to amend or abolish any of them (4).
5. Scottish Crown property rights are managed
and administered by the Scottish Government, with the exception
of the rights which make up the "Crown Estate", which
have been administered by the CEC and its predecessors in London
since the responsibility was transferred in 1832 (5) (See Fig
1).
Fig 1
ADMINISTRATION OF SCOTTISH CROWN PROPERTY
RIGHTS
* title to 26 ancient possessions was transferred
from the Crown in Scotland to the Secretary of State for Scotland
and subsequently Scottish Ministers in 1999
6. Thus a key question over the future of the
property rights that comprise the Crown Estate relates to the
logic and desirability of the current distribution of authority
over these rights and accountability for their stewardship. In
particular, given the extensive powers of the Scottish Parliament
over, for example, the management of the marine environment through
Marine Scotland in terms of planning and strategic management,
does it any longer make sense for the property rights to be administered
by a separate body in London? I submit to the Committee that it
does not and that the powers of administration that were transferred
south in 1832 should return to Scotland. This will mean that the
property rights which make up the Crown Estate in Scotland can
be administered and managed as part of an integrated and holistic
approach to natural resource management and can deliver enhanced
public benefits (for example, by providing trust ports and harbours
with full control of the seabed within the harbour - something
they currently lack).
7. Given the widespread concern there has been
over this issue as reflected in the publication in 2007 of the
detailed and authoritative report by the Crown Estate Review Working
Group (3) and in the report of the Treasury Committee in 2010
(2), it is disappointing to note the extremely timid and frankly
rather ridiculous proposal contained in the Bill.
8. The Bill provides a rare opportunity to put
the administration of Scotland's Crown property rights on a modern
footing consistent with the principles of devolution, subsidiarity,
sustainability and local control of resources.
STRENGTHENING SCOTLAND'S
FUTURE
9. The White Paper, Strengthening Scotland's
Future asserts that it is important that "the Crown Estate's
work is properly understood in Scotland" (6) Unfortunately,
the White Paper itself does little to advance this understanding
by itself containing inaccuracies in relation to the nature of
the Crown Estate and its administration.
10. The opening sentence "The Crown Estate
manages The Queen's hereditary UK property assets which She holds
as Monarch including certain properties in Scotland" is,
for example, factually incorrect. There is no such body as "The
Crown Estate" (there is the CEC which administers the Crown
Estate). The Crown Estate is not the Queen's hereditary property
assets as Monarch. It belongs to the Crown in Scotland (which
is represented by the Monarch). This is not semantics. It means
that Crown land is public land which is moreover within the legislative
competence of the Scottish Parliament.
11. The Calman Commission recommended that The
Secretary of State should, in consultation with Scottish Ministers,
more actively exercise his or her powers of direction under the
Crown Estate Act 1961 and, having consulted Scottish Ministers,
should give consideration to whether such direction is required
immediately (recommendation 5.8)
12. It further recommended that the appointment
of a Scottish Crown Estate Commissioner should be made following
formal consultation with Scottish Ministers (recommendation 5.9).
13. Clause 18 of the Scotland Bill proposes that
there be a Scottish Commissioner appointed by the Chancellor of
the Exchequer in London. There is no proposal on the question
of the power of direction.
ISSUES
The Power of Direction
14. The power of direction exists to enable the
Secretary of State for Scotland to direct the CEC over matters
in Scotland. There is a serious question as to the wisdom of retaining
this power with the Secretary of State who has never used it,
has little to do with the day to day governance of Crown rights
and has very limited staff capacity to take a view on how such
a power should be deployed and to what end over the scale and
range of the CEC's operations in Scotland.
15. The Scottish Government, by contrast, is
deeply involved in the management of Crown property rights and,
through Marine Scotland, has extensive powers over the marine
environment. Other agencies such as harbour trusts and Scottish
Natural Heritage have similar roles, skills and knowledge.
16. It appears far more sensible for the power
of direction to be vested in Scottish Ministers. Such an arrangement
would simply return Scotland to where it was prior to the establishment
of the CEC in 1956, when the Commissioner of Crown Lands for Scotland
was an elected Scottish politician in the person of the Secretary
of State for Scotland. Post devolution, however, Scottish Ministers
are best placed to discharge this function (as they do, incidentally,
with the Forestry Commissioners).
The Scottish Commissioner
17. If the CEC is to continue administering the
Crown rights which make up the Crown Estate in Scotland, then
adequate representation of Scotland's interests is desirable on
the CEC. Clause 18 of the Bill states that Scottish Ministers
should be consulted on the person that the Chancellor of the Exchequer
proposes to recommend to Her Majesty and that this must be a person
"who knows about conditions in Scotland as they relate to
the functions of the Commissioners". This is a lamentable
and scarcely credible proposal if the intent of the Bill is to
"further empower the Scottish Parliament" (7). Moreover,
there is no requirement to represent the interests of Scotland
or of the Scottish Parliament. It means that the "Scottish
Crown Estate Commissioner" (who will be appointed by the
Chancellor of the Exchequer) will wield more power over the public
lands comprising the Crown lands of Scotland than the democratically-elected
First Minister of Scotland and than the Scottish Parliament who
have legislative jurisdiction over them.
18. This particular proposal is deeply flawed.
If there is to be a "Scottish Commissioner", at least
let them be called the "Commissioner for Scotland",
provide the post holder with clear statutory duties to represent
Scotland's interests, and provide that the post is filled by the
First Minister of Scotland.
RECOMMENDATIONS
19. For decades there has been discontent over
the unaccountable and distant powers of the CEC over Scotland's
Crown lands. A decade into the Scottish Parliament, there is no
conceivable logic in continuing with an arrangement that splits
the administration of Scotland's Crown rights between two separate
bodies in two separate legal jurisdictions. There is nothing to
be gained and many opportunities to be to be lost by having the
CEC as a power broker and deal-maker over the development of marine
renewable energy, the ability of harbours to plan their future
and other matters within the competence of the Scottish Parliament.
20. The sensible thing to do with this anomalous
position is to use this historic opportunity to bring the responsibility
for the management and revenues of all Scotland's Crown property
rights together in one place in Scotland under the full jurisdiction
of the Scottish Parliament. Further discussion can then take place
about what part of the Scottish Government and/or local government
should administer the various rights.
21. The CEC's role in Scotland is both unnecessary
and inappropriate, The Crown rights it administers account for
only 4% of the value and 6% of the revenue of the estate across
the UK. The Scottish Government has the capacity to take over
the administration of these rights and thus the simplest, quickest
and most straightforward means of achieving this is to remove
the CEC from any responsibilities in Scotland.
I recommend therefore that the Committee considers
dispensing with the current Clause 18 in the Scotland Bill and
replacing it with the following
The Crown Estate Act 1961 is amended as follows.
After Section 1(7) insert
"Section 1(8) This Act does not apply to
Scotland"
REFERENCES
(1) The Poor Had No Lawyers, Birlinn, Edinburgh
2010
(2) The management of the Crown Estate, House
of Commons Treasury Committee, 2010 HC 325-1. Links to the Treasury
Committee Report and Evidence can be found at www.andywightman.com/wordpress/?p=60.
The section on Scotland is at pg. 48 of the Report and my own
response is at pg. Ev 37 of Volume II
(3) See The Crown Estate in Scotland - New Opportunities
for Public Benefits. Report of the Crown Estate Review Working
Group, Highland Council, 2007 for a full and detailed analysis
of the Crown Estate in Scotland. Available at www.andywightman.com/docs/CERWG-FinalReport12.06.pdf
(4) Scotland Act 1998, Schedule 5, section 3(1)
(5) The Crown Estate is not the name of the organisation
responsible for administering the Crown Estate though the CEC
has unilaterally branded itself as such. Instead, the Crown Estate
is defined in Clause1(1) of the Crown Estate Act 1961 thus, "the
property, rights and interests under the management of the Commissioners
shall continue to be known as the Crown Estate". See also
footnote 1, pg. 5 of Treasury Committee Report.
(6) Strengthening Scotland's Future, CM 7973,
pg. 63.
(7) Strengthening Scotland's Future, CM 7973,
pg. 11
January 2011
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