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 Draft Guidance states that such exemptions would be limited to events where paid admission was charged and in the interests of safety and security involving “competition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The Draft Guidance noted that “We know that there will be requests for section 11 exemptions for two major events in 2014 – the Commonwealth Games and the Ryder Cup.”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.

 ****************

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.”

In this Guest Blog, Bill Chisholm reveals the extraordinary story of how one former burgh in the Borders has outperformed all the rest in terms of its common good funds. That burgh is Berwick and it is now, of course, part of England.

Bill Chisholm was The Scotsman’s Borders correspondent from 1969 to 2005. He has taken a keen interest in the fate of the eight common good funds in the Borders burghs.

Scotland’s oldest and wealthiest burgh is thriving (in England)

Bill Chisholm 20 August 2013

Scotland has a very long history of community ownership of land and assets dating back to the founding of the Royal Burghs. The common good consisted originally of common land and grants of land by Royal Charter. Later in the 19th and 20th centuries additional land was acquired from neighbouring landowners and gifts of land were made by wealthy industrialists to form some of the famous parks in our towns and cities. In addition, a wide range of furnishings, paintings, regalia and other moveable property accumulated as part of the assets of the Common Good Fund.

The Common Good Act of 1491 remains on the statute book and states that the common good of all the Royal Burghs be observed and kept for the common good of the town and spent on the common and necessary things of the burgh.

Over hundreds of years, Scotland’s common good has been subject to poor management primarily due to the rampant municipal corruption and nepotism that prevailed as a consequence of town councils being responsible for electing their successors – a state of affairs that continued until the Burgh Reform Act of 1833. Genuine “local government” in Scotland was eventually abolished in Scotland in 1930 (parish councils) and 1975 (town councils) and responsibility for managing the common good passed first to District Councils in 1975 and then to the existing local authorities in 1996.

Scottish Borders Common Good Funds

Many people who take an interest in the status and performance of Scottish Borders Council Common Good Funds find it difficult to understand why an organisation with significant  land, investments and other assets consistently fails to achieve healthy annual profits. (1) This failure to secure a worthwhile financial return from the potentially lucrative commons means residents in the eight former burghs where the Common Good survives are missing out on their rightful inheritance. I thought it was perhaps a good time to take look at what has happened to these funds and as I did so, I made a remarkable discovery.

The unaudited accounts (1.3Mb pdf here) of the Council for 2012/13 reveal that the eight funds (Duns, Galashiels, Hawick, Jedburgh, Kelso, Lauder, Peebles and Selkirk) have combined net assets of £9.8 million and generated a collective deficit of £90,000. Of the eight, only Duns (£2000) and Lauder (£95,000) generated a positive return. By way of comparison, were the funds to generate a rate of return of 5%, this figure should be £490,000.

Burgh Income Expenditure Surplus/Deficit Net assets
Duns 2000 5000 -3000 30,000
Galashiels 2000 0  2000 26,000
Hawick 112,000 154,000 -42,000 3,032,000
Jedburgh 28,000 76,000 -48,000 1,371,000
Kelso 5000 35,000 -30,000 950,000
Lauder 269,000 174,000  95,000 1,031,000
Peebles 67,000 73,000 -6000 1,063,000
Selkirk 72,000 130,000 -58,000 2,336,000
TOTAL 557,000 647,000 -90,000 9,83,9000
No figures are reported by Scottish Borders Council for Coldstream, Eyemouth, Innerleithen and Melrose.
Income, Expenditure & Assets for 8 Border burghs
Source: Unaudited accounts 2012/13

It should be borne in mind that the sizeable areas of land held by the Borders Common Good Funds are, when taken together, equal in acreage to some of the larger privately owned estates in the region. Hawick has over 800 acres of farm land plus an unspecified acreage for the golf course and woodlands, Selkirk’s three farms alone cover 1300 acres while Lauder Common, one of the largest in Scotland, extends to some 1700 acres. The overall total possibly exceeds 5,000 acres.

Unfortunately, despite previous promises and pledges, there is still no sign of a public asset register clearly setting out everything that is included in the eight funds. However in February 2013 the council did, in response to a Freedom of Information request, provide details of the fixed assets (buildings and properties) and moveable assets (e.g. provost’s chains) in each of the funds. Perhaps the most striking aspect of this revelation was the fact that many of the items listed have been given no book value whatsoever, including Selkirk Town Clock, a number of common good open spaces, fishing rights on the Tweed at Peebles, and virtually all of the moveable assets.

Given the dearth of public information concerning millions of pounds worth of land holdings, investments and buildings, and the lack of detail of the charges levied on the funds by council officials, it is difficult to pinpoint what has gone wrong. But it would certainly seem elected councillors have played their part in allowing the Common Good estate to decline. It seems clear that the administration and development of Common Good assets is nowhere near the top of SBC’s list of priorities. That means the true potential of the multi-million pound operation will never be realised even at a time of austerity when every last penny is vital in sustaining local economies. Just this week, it was revealed that the £2 million cash balance was to be transferred to a “private firm of global fund managers.”

A similar regrettable pattern of Common Good neglect appears to have been developing right across Scotland ever since the abolition of town councils in 1975. A 2009 account of Common Good Funds in Scotland included some 1,600 assets in 144 separate funds with a reported value of £2.5 billion. Yet at national level too these huge assets failed to break even on the income and expenditure front. The Scottish Government’s official financial statistics for local government in 2011/12 showed gross expenditure on Common Good Funds to be £13,696,000 as against income totalling £11,540,000. That equates to an operating loss of £2,156,000.

Would these valuable assets have been better looked after had they remained in local control over the past 38 years? it is impossible to say for sure but it is fascinating to look at what has happened in one instance where that has happened.

Scotland’s first burghs four burghs – Roxburgh, Berwick, Stirling and Edinburgh – were established in 1125.

Roxburgh now lies in ruins.

Stirling and Edinburgh’s common good funds are, in the words of Thomas Johnston, “mere miserable starved caricatures of their former greatness.”

But Berwick is interesting and it is possible to compare the performance and fortunes of the region’s funds with a nearby charitable trust which administers the Common lands presented to this former Scottish burgh more than 600 years ago.

Berwick-upon-Tweed

The burgesses of Berwick-on-Tweed together with their contemporaries in Peebles, Hawick, Selkirk and the other Borders burghs received their Common lands from the Scottish king at around the same time. Today, the acreage under the control of the Berwick-upon-Tweed Freemen Trustees (Charity Commission No. 222154) is 2250 acres.

From the accounts (which can easily be downloaded from the Charity Commission’s website), we can see that the capital value of the investments at March 2011 stood at £4.896 million, and the total funds stood at £17,927,611. That’s almost double the £9.8 million valuation of the combined eight Borders Common Good funds.

Total income for 2010/11 was £437,448 (2009/10 £411,678). Rents yielded £280,853 while investments brought in £147,676. The Trustees generated a 2.4% return on capital

At the same time, the total income of the combined eight Scottish Borders funds in 2012/13 was £557,000 while expenditure totalled £647,000 – a deficit of £90,000.

As stated earlier, the common lands at Berwick-upon-Tweed were transferred to the burgesses and freemen of the then Scottish Royal Burgh at around the same time as the lands which now form part of the eight Borders common good funds.

The 3,280 acres of Common conveyed by a special Berwick Royal Charter of 1604 following the Union of the Crowns was vested with the freemen of the now English borough in perpetuity, although the acreage had gone down to 2,250 by the early years of the 20th century, thanks in part to the involvement of the town council which took control of the lands in 1843. The 1604 Charter had “granted to the burgesses the fee simple of certain lands over which the inhabitants had for centuries previously exercised rights of Common, grazing and other rights”.

But the introduction of statutory local government did nothing for the fortunes of the Berwick estate. The first elected town council melted down all of Berwick’s historic collection of silver, including the town mace…a sign of things to come.

During the 19th century the council often failed to pay the income from the estate to the freemen; financial accounts were not made available for public inspection; the town council attempted to alter some of the farm leases, and even leased farmland without advertising the leases.

By 1909 income was reduced and by now the local authority was spending all of the money it collected from the estate on council matters. The history of the estate also records that in 1916 the council wanted to lease the town’s ancient market rights to themselves at a rent of £5 per annum although the annual profit to the estate was £150. Such was the scale of council mismanagement that the estate fell into debt and by the 1950s the financial position was so dire one of the farms had to be sold for £9,000.

The local authority and the freemen were engaged in numerous legal disputes in the 20 years up to 1994 as the Borough Council attempted to plunder estate assets and proposed radical increases in annual administration fees from £5,000 to £18,000. Since 1994 the freemen Trustees and the Borough Council and Town Council have worked well together and as a result the estate has flourished. (2)

The retiring and new Town Mayor of Berwick-upon-Tweed. Note the “Scottish”purple ceremonial robes dating back to granting of Royal Charter by David I in contrast to English red robes.
© 
All rights reserved by Berwick-upon-Tweed Town Council

Map of Town Council of Berwick-upon-Tweed which includes the 2250 acres of land owned by the Freemen Trustees.

Concluding thoughts

What is fascinating about the above is the fact that one of Scotland’s oldest burghs survives today with a self-governing town council, £17 million of assets and an annual income of £437,000. At the same time, eight neighbouring burghs have half the assets and lost money last year.

The difference between this successful and relatively prosperous burgh (or borough) and the burghs of the Scottish Borders is that Berwick-upon-Tweed is in England. That simple fact raises all sorts of interesting questions about how local democracy and the commons have survived on both sides of the border.

So, perhaps as the Scottish Government holds one of its summer cabinets in Hawick, it might reflect on 900 years of Scottish history and ponder how to rebuild democracy in Scotland’s communities.

(1) All 8 Scottish Borders Common Good Funds are administered collectively as a charity No. SC031538

(2) Following the abolition of the Borough Council in 2009, a new Town Council was established.