15. September 2012 · Comments Off on Private and Local Acts of Parliament · Categories: Common Good, Democracy, Edinburgh, Governance, Legal affairs, Portobello

I was quoted in the Evening news yesterday as arguing that if the people of Portobello decide that Portobello Park is the best site for a new school, then the Court of Session ruling could be countered by a “Private Act of Parliament”. Some confusion has arisen as to what I meant because of a difference between the terminology used by Westminster and Holyrood.

The UK has its own terminology. Private and Personal (the term used after 1948) relate to legislation covering private affairs. A list of the Acts passed between 1539 and 2006 is listed here. Local Acts are legislation promoted by an organisation in order provide specific powers to, for example, build roads, railways canals, harbours etc. A full list since 1797 can be found here. The Scottish Parliament calls all Private, Personal and Local Acts “Private Acts”. Further details can be found here.

Over the years, a number of Local Acts have been passed dealing with the affairs of Edinburgh. Many of these are relevant to the debate over the Waverley Market with clauses dealing in great detail with the use and function of land in the city. Other clauses deal with the display of registration certificates for hairdressers, ear-piercers and electrolysists (Section 18 of City of Edinburgh DIstrict Council Conformation Act 1991). Section 22 of that Act deals with buildings in certain parks in Edinburgh.

This is the kind of legislation that could be used to permit the construction of a school in Portobello Park. For interest, I have included links to some extracts of these Local Acts (which relate to Waverley Market).

Edinburgh Corporation Order Confirmation Act 1933 includes s.278 permitting the Council to make alterations to the Waverley Market including very precise measurements (not be at a greater distance than 880 yards – s278(2))

Edinburgh Corporation Order Confirmation Act 1967 which includes the provision in s.145 that “The markets and slaughterhouses shall cease to form part of the common good.” This is an example of legislation over-riding centuries of case law on the definition of common good.

City of Edinburgh District Council Confirmation Act 1991 referred to above.

National Galleries of Scotland Act 2003 which repealed the restriction contained in s.22 of the 1991 Act (referred to above) relating to Princes Street Gardens.

The town where I grew up. Kinross Town Hall forms part of the common good of the people of Kinross and yet lies derelict and abandoned due to the incompetence of Perth & Kinross Council.

I have received a number of emails from people in Portobello who have queried my commitment to the cause of the common good of Scotland’s burghs. They complain that I have “switched sides” and that they “deeply regret my involvement in the issue”. These are people with whom I have developed a mutual respect over the years. I am sorry if they feel that I have somehow betrayed the cause of Common Good. In this post I want to explain exactly what I do think. Feelings are running high on both sides of the debate over a site for a new Portobello High School and the future is uncertain for everyone. But I remain as dedicated to restoring Scotland’s common lands to their rightful place in Scotland’s communities as ever and continue to work with many people to this end.

In a typical case in Scotland, folk are trying to reclaim control over common good land that is now the responsibility of a Council that takes in many former burghs. So, for example, Kinross, Dumfries, Forfar, Leven etc. are are now all subsumed into much larger local authority areas. In all of the cases I have been involved in, a small number of people are fighting an at times heroic battle to seek redress for past wrongdoings. One such is the late John Wilson of Greenock interviewed here who sadly passed away in 2011. His struggle is immortalised in Wilson vs Inverclyde 2003 and I wrote a short blog following his death.

These cases all involve attempts to identify and secure the proper administration of common good land against an often hostile and obstructive local authority. History is full of legal cases where citizens have gone to court to challenge Councils that have exceeded their powers (e.g. Murray v. Magistrates of Forfar 1893) or to protect their common good from a successor local authority to the Town Council (e.g. Cockenzie & Port Seton Community Council v. East Lothian District Council 1997).

My basic position is that I believe that the people of Kinross, Maybole, Langholm and such places should be the ones who are in charge of their common good and take decisions about how it is administered. Thus when I was originally asked for advice in relation to Portobello Park I willingly gave it to those who asked. Since 2006 PPAG have asked for advice on occasions and I have done my best to provide what assistance I could.

Until April 20102 (when I signed the petition asking PPAG to drop their appeal) I never took a view on whether there should or should not be a school built on the site. I have always been of the view that this is a matter for the people of Portobello. I still hold that view. At the moment there are those opposed to building  a school in the park, those in favour, and a lot of people who have never expressed an opinion.

Common good law evolved over centuries to protect the interest of citizens against often corrupt, nepotistic and undemocratic Town Councils. Such protection is still needed today 30 years after Scotland’s 196 burghs lost their local government because for 192 of these 196 burghs, decisions are not in their hands but in the hands of a much larger Council elected and accountable to people in other burghs in Fife or Angus for example. But where a community clearly wishes to do something with it’s common good and the Council agrees, the law should be there to facilitate this not to prevent it. Equally the law should be there to stop the Council over-riding the rights of the citizens. The law in this case is doing neither.

It follows that IF …… IF the people of Portobello wish to build a school in the park, they should be able to do so. If they don’t wish to do so, then that’s fine too. There is no point, however, in common good law which prevents a community doing what it expressly wishes to do.

At the moment, we don’t know what the people of Portobello think. Those opposed to the school in the park have spent a lot of time and money on a successful legal challenge. But, equally there are others more determined than ever to press ahead. There remain a number of options for doing so.

And that is why I believe that the residents of Portobello should be given the chance to express their view on the available options in a referendum.

Neil King (a retired lawyer) has drafted a bill – the Local Government Amendment (Common Good) (Scotland) Bill – to amend the Local Government (Scotland) Act 1973 to remedy what he considers to be a deficiency in the drafting of the Act that meant that the Inner House of the Court of Session had no option but to uphold the appeal by Portobello Park Action Group. He suggests,

“that the omission of the words “or appropriate” from section 75(2) of the Local Government (Scotland) Act 1973 is a pure drafting error and is it credible that Parliament meant to provide a mechanism for the outright *disposal* of inalienable common good but not for the lesser step of retaining it for an alternative use?”

He has written to Keiza Dugdale MSP as follows,

“Dear Ms Dugdale

I gather there is talk of a private act of parliament to authorise the construction of a new school on Portobello Park in the wake of the Council being blocked by the Court of Session decision.

I personally feel that private acts are effectively saying “change the law for me” whereas the law should only be changed for the benefit of everyone.

Also, it could set a dangerous precedent in that, each time someone comes up against a legal obstacle, they might be tempted to say “Oh well, no problem, we’ll just get a private act of parliament!”

I think there is a preferable solution which avoids these criticisms and is just as simple. It is a public act to amend the general law relating to all common good (not just Portobello Park) to remove the obstacle highlighted by the Court of Session in its recent judgement. In this way no other communities could find themselves thwarted in the way Portobello has and find themselves having to promote private acts.

As I’m sure you know, the nub of the court’s decision was that, the Council having conceded that Portobello Park is inalienable common good, section 75 of the Local Government (Scotland) Act 1973 gives the Council power to dispose of the park if it obtains the consent of the court (which may impose conditions) but not to “appropriate it” – i.e. retain it but change its use (with court consent).

That is indeed what the section says but it must have been a drafting oversight because it seems inconceivable that Parliament intended to provide a mechanism for the disposal of inalienable common good but not for the less extreme step of retaining it but changing its use.

And as someone observed, what could be a more fitting use of common good than its retention by the Council for the building on it of a school for the benefit of the local community?

Hence what I think is required is a very short (public) act to amend section 75 to add in references to appropriation (retention and change of use) alongside the references to disposal. I have drafted a bill and attach it for your use in case you wish to promote it as a private member’s bill. If it would help, I’d be happy to draft an explanatory note and policy memorandum to accompany this bill.


Neil King
CC. Kenny MacAskill”

This information is derived from posts by Neil King at 1500 today on the Talk Porty Forum.