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.

[pic from Evening News]

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 (see image above). 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 bout 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 to build a new home for the Parliament and construction extended from 6 April 1632 to 11 November 1640. The land upon which Parliament House sits was part of the old churchyard of St Giles which was gifted to the Town Council by 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. 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 th 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 noted that,

This property was originally among lands contained in a Royal Charter granted by His Majesty King George I in favour of the Provost, Magistrates and Councillors of the City of Edinburgh and registered in the Register of the Great Seal on 28/06/1725 and Instrument of Sasine registered in The Particular Register of Sasine for Edinburgh on 19/08/1725.” (3)

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. 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. (4)

I await developments with interest.

NOTES

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

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

(3) 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.

(4) 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.