The City of Edinburgh Council has advertised its intention to introduce a Private Bill to enable it to build a new Portobello High School on part of Portobello Park. This follows a meeting of the Council on 14th March which agreed to this course of action as outlined in the Council paper for the meeting. See earlier posts for background to this controversial project (select “Portobello” from blog categories on right).

On 12 September 2012, in a case brought by Portobello Park Action Group (PPAG) against the Council,ย the Court of Session ruled that the Council did not have the legal power to appropriate (to use for another purpose) any of Portobello Park for the construction of a school. The reason was that the park was deemed to be inalienable common good land. I remain skeptical as to whether in fact the land is indeed common good of any kind (see this post in particular) since no court has ever ruled on the matter, it being simply an uncontested assertion by both PPAG and the Council. But this point is academic now.

It is proposed that the private bill the legislation should “reclassify Portobello Park as alienable common good land for the purposes of Part VI of the Local Government (Scotland) Act 1973, but only in so far as permitting the appropriation of the Park for the purposes of the Council’s education authority functions.

This is an interesting approach since the normal way of removing any common good restrictions from land is simply to declare that the land in question is no longer common good. This is what has happened in the case of the markets and slaughterhouses which were declared to no longer form part of the common good in Section 145 of the Edinburgh Corporation Confirmation Act 1967. (1.7Mb pdf). Similarly, the National Galleries of Scotland Act 2003 simply removed the statutory restrictions on building on the common good land of East Princes Street Gardens.

Were a similar approach to be adopted in the case of Portobello Park, a private bill would simply remove the site for the new school entirely from the common good (whilst perhaps at the same time confirming or dedicating the remainder of the park as inalienable common good). Perhaps the Council has decided that by affirming the whole park as alienable common good and seeking specific permission to appropriate a part solely for education, the bill will be better received by MSPs for whom removal of the site from the common good might be seen as a step too far. In this respect it is worth noting that the 1967 Act received little if any scrutiny from the citizens of Edinburgh, it being debated and passed in a faraway Parliament in London.

The private bill is to be introduced to Parliament on or around 22 April 2013.

50 Comments

  1. Andy, what’s the difference between alienable and inalienable common good? And won’t this involve deciding whether Portobello Park is common good or not?

    • Alienable can be appropriated. Inalienable cannot. No need to decide whether common good since the Bill will say that. What becomes law is law.

      • Yes, I knew that. I just wondered HOW it was classified; what is the basis, the criteria, for deciding common good is either alienable or non-alienable.

        • There are no fixed criteria – they have evolved through case law. Inalienable usually includes land from original charters, markets, links, town halls etc – stuff of antiquity, long-standing public use etc. Alienable is everything else.

          • But the Council has accepted (on its legal advice) that it IS common good, and that it IS inalienable. It is not challenging this status in the wording you have given. It is seeking a ‘re-classification’ so I just wondered how they would go about reclassifying one part of it without reclassifying the lot.

          • Through the wording of the Bill, which hasn’t been published yet.

      • I also wondered how they would go about classifying only the section of the park they are interested in as ‘alienable’.

        1. Either the park is common good or not. (The Council has obtained legal advice advising that it is.)

        2. If it is common good (and the advice is that it is) either it is all alienable common good or all inalienable common good, since there is no difference in status, use, or anything else to distinguish the golf course from the lower bit where the football pitches are,

        • Acknowledge all you say (though I question the Council’s legal advice http://www.andywightman.com/?p=1937) but remember there need be no prior criteria for separatign one bit of the park from another. If MSPs content to legislate, they simply declare in the Bill that Part A is alienable common good and Part B is inalienable. If this becomes law then that is the law – just as there was no criteria by which Edinburgh Council removed the markets and slaughterhouses – they just did it (or Parliament did it).

          • The difficulty I am having here is of the separation of powers – the cornerstone of any democracy. It sounds like what you are arguing for is for Parliament to hold a kind of royal fiat – ‘I say so, therefore it is’. Magic! That went down well in the Middle Ages, but not in modern times, when it was called ‘arbitrary, despotick government’. Ie. ‘One rule for Edinburgh, because I like you; another rule for the rest of the country, because you’re not so special, and I don’t favour you’. Parliament can make new laws; it cannot make exceptions from current ones, without it applying to everyone equally.

          • Yes it can. You may not agree that it should, that’s a separate from whether it has that power.

            The point of Private Bills, by and large, is to make exceptions. Laws are rules and rules have unintended consequences. Sometimes you may have a proposal that’s desirable but may not be lawful. Parliament, if it feels the proposal is justifiable, can make it lawful without having to change the general legal framework.

        • The aim of the Bill appears to be re-classifyingpart of it from inalienable to alienable ‘for the purposes of education’. So it may retain inalienable status for purposes outwith that.

  2. Little by little common good land is being eroded away. When it goes like this it’s either not noticed or the reaction is, “Well it’s a good use” or “It won’t be missed;” when it is missed it will be too late, there will be none left.

    We elect our representatives to safeguard our interests, a sick joke really, the only interests they represent are their own and big business.

    Given events in Edinburgh in recent years I think when it comes to civic affairs the good burghers of Auld Reekie are fast asleep.

  3. They may only seek to reclassify part of the park as inalienable.

    • You mean alienable? Yes – unclear at this stage whether proposal is to classify all or just part for the school. They would be well-advised to just classify the latter.

  4. Yes ‘alienable’, sorry. It was something that came up during the consultation in response to questioning; that they’d only be looking for the Bill to apply to the portion allocated to the school and that the golf-course wouldn’t be affected.

    Don’t know how that would translate into the wording of the Bill but it would seem the sensible approach.

  5. The proposed Private Bill follows a public consultation that gathered 12,000 responses, so it’s not as if the local public aren’t very much aware of the issues.

    • We had a public consultation here (a small Perthshire village) about alterations to the road through the village.

      The residents didn’t want the changes, the coucil officials sat contemplating their navels throughout the ‘consultation. and the project was pushed through by two councillors, one of whom doesn’t drive and the other doesn’t live in the village.

      The council when challenged said “We had the money and had to spend it or lose it.”

      • The consultation here demonstrated considerable public support for the proposal; 76% locally and 70% across the City.

  6. I wouldn’t be too quick to believe the claims about the consultation proving public support. The consultation was a farce and we just have to hope that the Scottish Parliament see it for what it was.

    • The consultation went very well. 10,000 responses across the City is remarkable compared to most consultations. And 76% of local responses in favour is hard to argue with.

      • That will go someway to explaining the unanimous cross-party support for taking the Bill forward, including the Greens.

  7. Hey ho! So while we country bumkins want glens and rolling hills townies want to cover themselves in concrete; each to his own. ๐Ÿ™‚

    • The proposals involve a new park on the existing school site to minimise the loss of open space but, whilst there is a loss overall, the park is by the best site for the new school amongst very limited options. That’s why there’s considerable local support.

  8. So be it. but surely other sites (brown field) could have been found and developed. the question that is all too often not asked is, can a better site be found, long term the most obvious and easiest answer may not always be the best.

  9. 15 sites were evaluated, including a number of brownfield ones, but most were not remotely viable. There are currently two possible fall back sites identified, both brownfield, but their deliverability is uncertain and they are much poorer sites for the school.

    This issue has been the subject of extensive local debate and discussion for the past 7 years, and has been explored thoroughly. And after all that the local community is largely in favour of the proposals.

    • So some good came out of the tram fiasco. folks woke up! ๐Ÿ™‚

      • The problem is though Stuart that if this route can be tried once, successfully, it can be tried again.

        • It’s a mechanism that already exists should a Local Authority require it, and parliament will judge each case on the individual merits. In some instances it may be justified, in some instances not.

          The legal framework around Common Good may be altered anyway in due course with the Community Empowerment and Renewal Bill, but that’s a while off.

          • Although you say that it is a mechanism that already exists, it has never before been used in circumstances like this to circumvent a legal ruling like the one emerging from the Court of Session. This is new territory and it’s impact must not be underestimated.

          • It may be new, but by it’s very nature it’s specific to this situation. That’s the point of Private Bills; the Public law remains unchanged.

          • Well what you mean Sean is that a Private Bill is nothing new. But the way the Council have worded this is that they want the Parliament to sweep away a legal judgement on a point of law, and the philosophy of law, Scots law being philosophical, in basis, unlike English common law, and that I think is something Parliament cannot and should not do. It is like asking Parliament to re-classify the concept of theft as not theft but rightful possession. Apart from being an assault on the philosophical basis of natural justice, it is interference in the separation of powers which has been the basis of the British constitutions since the seventeenth century. Had the Council simply asked the Parliament to be allowed to build on inalienable common good land in this single exceptional instance, then that would be fine. But they are asking the Parliament to re-classify something, they are asking the Parliament to change jurisprudence and that I think is not something that can be done. I’m sorry to disappoint you but I think the Council have been very foolish here in the wording of what they are asking for. I think this could become seriously unstuck. I think we could see the Court of Session being up in arms about this. They need to change the wording.

          • It wouldn’t sweep away a legal judgement. The judgement would remain the established legal position regarding the appropriation of Common Good land. The Private Bill would simply grant a relief from that in this particular situation, which is what Private Bills do.

            “A Private Bill is introduced by a promoter, who may be a person, a company or a group of people, for the purpose of obtaining particular powers or benefits that are in addition to, or in conflict with, the general law. Private Bills generally relate to the property or status of the promoter.”

            http://www.scottish.parliament.uk/parliamentarybusiness/Bills/29669.aspx

          • And whilst it’s kind of you to think of my feeling, don’t worry.

            I remain undisappointed.

  10. The School on the park has been an ongoing issue for many years now. The consultation has finished and results published. 76% of local residents support the proposal. Unfortunately, some people do not want to accept the outcome as it wasn’t the result they were hoping for. Hopefully, the politicians will support the wishes of the majority of local residents. The current school site is to be turned into a park and will compensate for loss of green space.

    Stuart, the difference between your village and the school on part of Portobello Park is that 76% of local residents actually want the school on the park.

  11. i was a former student at portobello high school. the school is a dump hope they build a new school some i remember the roof leaked, drains blocking,heating sometimes works and sometimes not would u want your kids going to school knowing this well i did and i dont like to say i went to portie becouse i see the place is a dump the building is so old i am shocked the place is still standing. all these people how have helped stop the school getting built are put a bit of land before education has briton gone bonkers i think so. ps i finished portobello high in 2004

  12. I support the building of a school on the park but utterly deplore the legal shenanigans which has had to be gone through to deliver it.

    M Clyde’s comment above (at 9.04pm “The difficulty I am having here is of the separation of powers…”) is very shrewd. In medieval times, it was the Crown which held the royal fiat (“L’etat c’est moi”) whereas nowadays the same power is held by parliament under the principle known as the “sovereignty of parliament”.

    The question is, what does it take to get parliament to exercise its powers in your favour? In medieval times, being the king’s brother in law would be a big help. Nowadays, it seems being an incompetent council is good enough.

    Someone in Edinburgh Council made a colossal blunder by conceding to PPAG that the park is common good when it just so isn’t. When that fact came to light after the Inner House decision last year, EC got two lawyers to tell them they had been right all along and one of them even gilded the lily by saying he was so convinced, he would refuse to act for the Council if it decided at the 11th hour to challenge the CG status. The Council then proceeds to get the situation reversed by a private Act of Parliament.

    Let’s be clear what this is – you make a cock up so you get an Act of Parliament to bail you out! Only a Council could get away with that, not an ordinary person in the street. I’m glad it looks like the school will be delivered via this route but the bigger picture is it’s not good for democracy to expect the law to be changed for you personally when you’ve made a mistake.

    • The core issue is the need to replace Portobello High School. The best site by far for the school is Portobello Park, but the only remaining route to achieving that as things stand is a Private Bill. Whether or not the Private Bill is successful depends on MSPs being satisfied that it is justified in this instance, leaving the general law unchanged. I see no great problem for democracy in that.

    • Well I think that the Council is on course in the wording of this bill to cross the legal establishment. Because what they are asking the Parliament to do, is not to make a Private Bill in their favour, but to make a change to jurisprudence. And that scares me, because that’s not the job of a legislature, to comment on the theory and practice of the law. I fear this idiocy is set to run and run. And if it doesn’t, that’s even scarier, because it means a threshold from democracy to tyranny has been crossed, and nobody spotted it, out of sheer slop.

    • The other issue being that as long as Scotland is not independent, I doubt very much that the Scottish Parliament, as currently constituted, can be considered to hold the full sovereignty of parliament.

      The source of common good was the Crown – the medieval Scottish Crown. Common good was inalienable because it was a gift from the Crown to the burgesses of royal burghs out of its royal desmesne.

      As you say, they’ve got themselves into a right old tangle here, and you can’t lay that at the door of PPAG.

  13. Those pesky thresholds from democracy to tyranny. They’re always croping up.

  14. Sean, you’re not hearing what I am saying. The Council has made another cock up here. They aim at asking for a relief from this situation, and in principle, nothing wrong with that. Fine. The Parliament could if it wished, grant this.

    But that is not what they have in fact gone and asked for. They have gone and asked for the inalienable common good land to be re-classified, but this is jurisprudence, not statute, and therefore not the realm of a legislature – except in dictatorships where the rule of law does not run. There are an awful lot of issues here. Could they not change the wording?

  15. I hear what you’re saying. I’m just not giving it much weight.

  16. And that pesky threshold from democracy to tyranny. Don’t forget that.

  17. The Council are in over their heads Sean. They are getting into constitutional territory here. It is not competent for a legislature to comment on matters of jurisprudence. Sharper legal minds than those of the Council’s could pitch in here. Your project could face even longer delays. You have been warned.

  18. I think a delay to the school is the least of our worries, what with the prospect of tyranny being unleashed an’ all that.

  19. There is no need to take this sneering attitude Sean. This conversation is at an end.

  20. M Clyde @ April 11, 2013 at 12:09 am You are of course correct. Although the UK parliament is sovereign, Scottish Parliament is not. It is a body that is pursuant to the Scotland Act 1998 (as amended) and of course the later Scotland Act 2012 – both of which are UK statutes.

  21. Seanie, I think in making remarks in the way you are, YOU are alienating an audience that was pretty split. You seem to have the ear of the council, or the council certainly have your ear, given the close relationship between CEC and PFANS as evidenced by your websites and the way the consultation campaign was conducted. Now you have its results your comments are overbearing.

    You are correct in saying this request applies strictly to Portobello Park, though once again (as in 2004-6) it leaves the status of the golf course very uncertain. I suspect that the Council, very quietly, would love to avoid the costs of maintaining a public course, and even more quietly would relish a closure if the grounds are at that point Alienable.

    However as others have said it establishes both a precedent for other Councils who wish to take a similar approach regarding their own lands; and it fundamentally crosses a divide in what is democratically and constitutionally acceptable. I’ll leave it to others more qualified than I am to continue that argument.