Today, Scottish Labour published “Together We Can” – a document outlining its vision for the future of Scotland. This follows the publication of its Devolution Commission (2.1Mb pdf) proposals on Wednesday – see my blog on that in relation to the proposals on the Crown Estate which I still don’t understand.

Anyway, today’s document has some interesting things to say about how Scottish Labour sees the land reform agenda in the years to come and I reproduce the relevant extract here in full from page 44. It includes a statement on the Crown Estate.

“Alongside promoting safe and secure communities, we want people to have more ownership of them. Under the last Labour-led Scottish Government, we began the process of giving our communities their land back.

Community ownership of assets is a powerful vehicle not just to tackle social injustice and inequality, but also to deliver economic growth. It gives power to the people and allows them to transform their communities.

The Isle of Gigha is a fantastic example of how community ownership can transform an area’s future. The people who live there are building new homes, developing renewable energy schemes and reversing population decline. Together, they are breathing new life into their community.

The 2003 Land Reform Act, which gave rural communities the right to buy land in their neighbourhood, has allowed remarkable progress to be made, with almost half a million acres now in community ownership.

Despite that, Scotland’s land ownership patterns are significantly out of line with what is the norm in most of Europe. It is shocking that just 16 owners possess 10% of Scotland’s land, and get tax breaks for the privilege. If we want to have any real hope of changing the current pattern of land ownership in Scotland then we have to be bold and radical.

Scottish Labour will commit to extend rights for the community to buy land across Scotland. If it is in the public interest for communities to own their land, then they should have the right to buy it, even when the landowner is not a willing seller – that is a power worth having.

Just as community-owned renewable energy schemes work in rural areas, the same principle can work in urban communities. We believe in a community’s right to own land and assets, and they also have the right to enjoy them. Scotland’s stunning landscape and fascinating wildlife are some of our country’s best assets, and the success of our two National parks, in the Cairngorms and Loch Lomond and The Trossachs show that they can bring economic benefits as well as environmental ones. We will explore how best to build on this success in those parts of Scotland where national parks could work.

In addition, we are convinced of the strong case that has been made to devolve the administration and revenue of the Crown property and rights and interests in Scotland, which are currently managed as part of the Crown Estate. This would ensure that the Crown Estates expertise and capital would assist local communities to manage and develop the seabed and foreshore.”

Exactly two years ago today, the Scottish Affairs Committee of the House of Commons published its report on the future of the Crown Estate in Scotland. Its conclusions were unequivocal. The responsibilities of the Crown Estate Commissioners in Scotland (CEC) should be ended and, subject to agreement on a scheme of devolution to the local level, the administration and management of the Crown Estate should be devolved. This recommendation was based upon the first comprehensive inquiry into the matter since the CEC was formed in 1956. Earlier this month, the Committee re-iterated its original findings in this follow-up report.

Yesterday, the Scottish Labour Party published its Devolution Commission proposals (2.1Mb pdf) on further devolution of powers from Westminster to Scotland. Here is what is said about the Crown Estate (on pages 239-240).

602. Another area where it has been suggested scope for devolution to local authorities exists is in regard to the Crown Estate. In March 2012, the House of Commons Scottish Affairs Select Committee published a report on the Crown Estate Commissioners’ (CECs) management of the Crown property, rights and interests which make up the Crown Estate in Scotland. The Committee concluded: “at best, the organisation [CEC] has a fundamental misunderstanding of the needs and interests of local communities and indigenous industries on the Scottish coast … At worst, it behaves as an absentee landlord or tax collector which does not re-invest to any significant extent in the sectors and communities from which it derives income”. Accordingly, it was recommended that the administration and revenues of the ancient Crown property, rights and interests in Scotland, which are currently managed as part of the Crown Estate (including the seabed and the foreshore) should be devolved then decentralised as far as possible to local authorities and local communities, with devolution to the Scottish Parliament conditional upon an agreement between the Secretary of State for Scotland and the Scottish Government on how such a schemes should be implemented, on the basis of the principle of subsidiarity. This agenda has also been adopted by the Our Islands Our Future campaign.

603. There is clearly potential for devolution of the Crown Estate Commission’s powers. We agree with the analysis of the Scottish Affairs Select Committee report on the Crown Estate, and hope the government will act on the recommendations in their report of March 2014

604. We see merit in the argument for full devolution of the Crown Estate’s responsibility for the seabed and foreshore to local authorities. On the other hand, we are conscious that this could potentially undermine cross subsidy of investment and technical expertise on renewables. We need to balance these two competing viewpoints. We agree with the Crown Estate that the default assumption is that the seabed and foreshore should be managed by local authorities or local communities and that they have developed leasing arrangements which make this possible. If this can be made to work, allowing the Crown Estate to take an interest in particular developments, we will support this. Thus, we propose to use the Crown Estate’s expertise and capital as necessary, but allowing local councils and local communities to manage the seabed in other respects, in order to achieve real devolution to very local areas while preserving the benefits of the wider Crown Estate resource.

605. We therefore endorse the idea of the Crown Estate developing more effective partnerships at community, local authority, and Scotland levels. This means two things in practice. Firstly, local management agreements between local authorities and the Crown Estate, which are an example of best practice, should be applied as widely as possible, with the Crown Estate establishing appropriate mechanisms to facilitate maximum local authority and community engagement. Secondly, a Memorandum of Understanding between the Scottish Government and Crown Estate should be agreed in respect of their common objectives on the development and management of the seabed and foreshore, and those local authorities with an interest in this area should be fully consulted throughout as to its contents.

In another document published by Scottish Labour – Together We Can (2.8Mb pdf), the party states that,

“…we are convinced of the strong case that has been made to devolve the administration and revenue of the Crown property and rights and interests in Scotland, which are currently managed as part of the Crown Estate. This would ensure that the Crown Estates expertise and capital would assist local communities to manage and develop the seabed and foreshore.”

So – the Scottish Labour Party agrees with the Scottish Affairs Committee’s recommendations (full devolution) and hopes that the Conservative/Liberal Democrat Coalition Government will implement them (despite it having made clear that it won’t).

But – if Labour form the next UK Government, it will not implement the recommendations and, instead, adopt the partial (and as far as I can see) a rather muddled approach outlined above.

What is going on?

Image: The British Army on exercises, King’s Park, Stirling. Pastel by William Kennedy 1889

On 15 August a ceremony will be held in Stirling to mark the transfer of ownership of the King’s Park from the Crown to Scottish Ministers. Thus ends a long and disgraceful saga from which none of the official bodies concerned can take much credit. Rather it has been thanks to the diligence of the King’s Park Community Council, local activists and others that this important historic Royal Park was not sold and Stirling’s common good fund raided to finance the acquisition.

The sequence of events is as follows.

The King’s Park at Stirling Castle is Scotland’s earliest Royal Park and the last one still to be owned by the Crown. Since 1956, this historic 140ha park has been administered by the Crown Estate Commissioners (CEC) as part of the Crown Estate, with 48 ha leased out as agricultural land, 61ha leased to Stirling Golf Club on a 30 year lease (1992-2022) and 28ha leased to Stirling Council as a public park and  other ground (See map 2.8Mb pdf).

In 1999, virtually all the historic sites still held as ancient possessions by the Crown in Scotland were transferred to the ownership of Scottish Ministers as part of the devolution settlement. These included Edinburgh and Stirling Castles, Holyrood Park, Glasgow and St Andrews Cathedrals and Linlithgow Palace and loch. (1) The King’s Park was left out of the transfer however, apart from the small area of land comprising the King’s Knot.

In 2001, the CEC increased the rent for the golf course by a substantial amount and the case went to arbitration. The arbiter found in the club’s favour at around half the amount being sought by CEC.

This led to negotiations in 2006 to explore the possibility of the club acquiring the land they rented. Negotiations were conducted in secret. However, local people found out at the same time as a detailed report by a group of Councils on the management of the Crown Estate in Scotland became available. The report set out the position over the King’s Park and controversy ensued. As a result, in November 2006, the CEC was forced to withdraw its proposed sale and instead agreed to explore alternative approaches with Stirling Council.

Those discussions led to a detailed proposal adopted by Stirling Council to establish a public trust to take ownership of the land and grant a long lease to the golf course for an up-front capital payment and peppercorn rent. A purchase price of £600,000 was placed on the land to be funded by a £450,000 up-front payment by the golf club for their 175 year lease and £150,000 from the Stirling common good fund.

This deal was resisted by the King’s Park Community Council and they commissioned some work to be carried out to develop a more appropriate way forward. The report – The Right Future for the King’s Park – was published in October 2008 and formed the basis of subsequent fraught negotiations with the Council. Meanwhile, the CEC sat tight and said nothing. Scottish Ministers were approached in October 2008 but declined to act and insisted that the transfer could only go ahead on the terms then being negotiated.

Protracted discussions continued between the CEC, Council and Golf Club during 2009 and 2010, with continued opposition from the local community. Then, in January 2011, the House of Commons Scottish Affairs Committee launched an inquiry into the management of the Crown Estate in Scotland, and the proposed sale of the King’s Park was halted pending the outcome of the inquiry.

In March 2012, the Committee published its report and this is what they concluded in relation to the King’s Park.

157. The second historic site managed by the CEC as part of the Crown Estate is the King’s Park at Stirling Castle. The national historical and cultural importance of this ancient possession of the Crown in Scotland has been highlighted by the Scottish Government. Andy Wightman was very critical of the CEC’s record of managing the King’s Park:

“there has been a lot of controversy over it. That was one of the reasons I got very angry with the Crown Estate Commissioners. …. It is an incredibly important historic area which they just regard as a piece of farmland and a lease to a golf course. In 2001, they were going to sell the land to the golf course, and even the local authority did not know about that.”

158. He concluded that the Park should be the responsibility of Historic Scotland rather than the CEC with its commercial remit. Historic Scotland already manages Stirling Castle and a part of the King’s Park on behalf of Scottish Ministers as owners.

159. We recommend that the Secretary of State for Scotland directs the CEC to enter discussions with the Scottish Government, with a view to the CEC transferring the ownership of all of the King’s Park still held by the Crown to the Scottish Government.

In March 2012, the CEC / Council / Golf Club deal was still on the table only this time the remaining agricultural land was included and the purchase price had risen to over £1 million, with the common good fund to be raided to the tune of £567,000 – over 60% of its total capital reserves – to transfer ownership of public land from one public body to another. (2) But the deal could not be signed off until the UK Government had responded to the recommendations of the Scottish Affairs Committee.

A Parliamentary question by Patrick Harvie MSP revealed that Scottish Ministers had begun to take an interest in the matter.

In July 2012, the UK Government published its response to the Scottish Affairs Committee report. It rejected the Committee’s recommendations that the Crown Estate should be devolved to Scotland but agreed that oysters and mussels and the slopes of Edinburgh Castle (left out of the 1999 transfer of the Castle itself) could be transferred. On the question of King’s Park, however, the UK Government stated that, unlike the land in West Princes Street Gardens, the King’s Park was different:-

7.6 The King’s Park, Stirling cannot, however, be among these [ancient assets that could be transferred]. After lengthy negotiations, the Crown Estate recently agreed a market price for its sale to Stirling Council, so transfer at nil cost would be incompatible with the Crown Estate’s statutory responsibilities. Similarly, the rights to gold and silver and many salmon and other fishery rights have commercial values on the property market which the Crown Estate cannot disregard.

Following the Scottish Affairs Committee report, Scottish Ministers started to take a renewed interest in the matter and instructed Historic Scotland to open discussions with the CEC with a view to securing a transfer of ownership at no cost. In August 2012, the local MSP, Bruce Crawford wrote to the Council urging them to withdraw their offer in the expectation that this would clear the way for a nil cost transfer.

In Sep 2012, a group of prominent historians issued a statement emphasising the historic importance of the site. This was followed by a paper establishing the boundaries of the land in question.

In the lead up to a crucial Council meeting on 11 October 2012 (Agenda and Minutes), the CEC was still of the view that the land had a commercial value and that they expected any sale to be on commercial terms. The Scottish Green Party Councillor, Mark Ruskell tabled an amendment to secure a nil cost transfer, but this was narrowly defeated in favour of a motion remitting the matter to the Chief Executive to pursue matters further. Critical to this was a letter from Historic Scotland of 8 October which emphasised that matters were still under negotiation.

By the time of the next Council meeting on 13 December matters had moved on and at last, some sense seemed to prevail. The golf club would pay a sum to the CEC for a long lease, title would then be transferred to Scottish Ministers at no cost and the common good fund would remain untouched. Here is the report in the Stirling Observer.

This appears to be essentially the deal that has now been secured. It is not what was proposed in The Right Future document, in that the title to Scottish Ministers is burdened by a 150 year lease. However, the settlement safeguards the integrity of the King’s Park, re-unites its ownership with Stirling Castle and affirms the long argued principal that a nil consideration transfer to Scottish Ministers was the right way forward.

It is safe to assume that the fact that CEC and the Scotland Office had been arguing against this position until very recently will be quietly forgotten next week And so, when Michael Moore, Fiona Hyslop and dignitaries from Stirling Council and the CEC make their speeches, have their photographs taken, and enjoy their “light finger buffet” on Thursday 15 August, I will be paying close attention to what they have to say about how this all came to pass.

The folk who were critical in securing this outcome will probably not be at the ceremony but they know who they are. They can take credit for not only securing the future of the site in public ownership but also preventing the pillaging of the Stirling Common Good Fund to the tune of £567,000. One day, the Trustees of the Fund might think it appropriate to spend some of these savings on a light finger buffet in recognition of the efforts of those whose hard work since 2006 lies behind the ceremonies next week.

(1) The full list of properties is listed in Annex 6, page 122 of the 2007 report of the Crown Estate Review Working Group. Full report is here.

(2) See Council Agenda 1 March 2012 Item 25 (6.3Mb pdf)

UPDATE 15 August 2013

The CEC has issued a media release which reveals that the Crown is granting a 150 year lease to Stirling Council for a consideration of £817,000. The Council are granting a sub-lease to Stirling Golf Club which will contribute £400,000 of the cost. The title is then being transferred gratis to Scottish Ministers. It is not clear where Stirling Council intend to raise the £417,000 from. I have placed a request for this information with the Council’s media office.

Finally, it is interesting to note the final sentence of the CEC media release.

The Crown Estate has a statutory obligation to transfer land at market value.”

This goes to the heart of the matter. The assertion is untrue. Not only has the CEC in the past conveyed bits of harbours and the like for minimal consideration, it conveyed the 26 historic properties (including Stirling Castle and the King’s Knot) for no consideration and the CEC’s own statute does not oblige it to “transfer land at market value. There are a number of provisions in the Crown Estate Act 1961 that provide flexibility to the CEC in transferring title, the most important of which is Section 3(1).

3 General provisions as to course of management.

(1) Save as provided by the following provisions of this Act, the Commissioners shall not sell, lease or otherwise dispose of any land of the Crown Estate, or any right or privilege over or in relation to any such land, except for the best consideration in money or money’s worth which in their opinion can reasonably be obtained, having regard to all the circumstances of the case but excluding any element of monopoly value attributable to the extent of the Crown’s ownership of comparable land.”

I emphasis in bold the critical part of the section.

UPDATE 1 SEPTEMBER 2013

The terms of the deal reached between the crown Estate Commissioners and Stirling Council is as follows.

There are three ground leases to the Council for 150 years at nominal rent. The map below shows these areas.

Lease 1 (blue) covers the current public park, the public paths around the golf course and all the land adjacent to the Castle (Gowanhill, Back Walk etc.). There is no capital payment for this lease.

Lease 2 (yellow) covers the golf course. It is sub-leased to Stirling Golf Club for 150 years. They have paid £400,000 for the sub-lease, which Stirling Council has passed on to the Crown Estate Commissioners as the consideration for the ground lease of this land.

Lease 3 (pink) covers the two large areas of agricultural land. The value of this land is £417,000 and the Council has concluded an agreement with the Crown Estate Commissioners that this sum can be paid up over twenty years. There is an option at any time to pay off the balance and terminate the agreement. In the meantime, income from the use of the land is shared. Any capital investment the Council makes in improving the land (for example in creating the new parkland or the major events ground) is taken into account under the agreement. Stirling Council will pay for this lease from its normal annual budget.

The heritable title to all of the land, subject to the three ground leases in favour of the Council has passed from the Crown Estate Commissioners to Scottish Ministers for no consideration, as recommended by the House of Commons Scottish Affairs Select Committee.