Wednesday, 21 February 2018

Common good reform kicked into long grass


An initiative aimed at reforming laws governing Scotland's centuries old Common Good property and funds has been scuppered after the Scottish Law Commission (SLC) deemed the subject was not worthy of consideration.

It means work done by Holyrood's Local Government and Communities Committee, including evidence taking and a call for written submissions appears to have been rendered a complete waste of time with the controversial topic stamped 'completed'.

Committee convener Bob Doris MSP had written to Lord Pentland, the SLC chairman to include proposals for Common Good legislation in the next programme of law reform.

Mr Doris, whose request followed deliberations by his committee, told Lord Pentland: " Over a number of years the issue of modernising the statutory framework for common good property and funds has featured in the work of Scottish Parliament Committees. The Local Government and Communities Committee has sought written views and taken oral evidence on this issue".

The letter continued: " At the meeting on 20 December 2017 the Committee heard that whilst work is underway at the Scottish Government to provide for a register of common good other challenges remain. These challenges stem, in part, from the ancient patchwork of legislation and subsequent court rulings which have arisen in this area over time. It is fair to say that it is an area where legal expertise is particularly vital in understanding how those aspects work together.

"Work in this area is long overdue but we also recognise that as a Parliamentary Committee we could not do justice to this issue in the time we have available and given the specialist legal knowledge required to modernise legislation in this area."

Mr Doris invited Lord Pentland to consider a late request to include consideration of modernising the law in the area of common good property and funds as part of the SLC's agenda. 

In his response the SLC chairman said that In the course of last year "we consulted widely on topics for inclusion in our Tenth Programme of Law Reform.  I should say that one consultee did raise the issue of common land and common good as a potential law reform project.".

But Lord Pentland added: "We took the view that there was inadequate support for a project on the law of common good property and funds, and that other topics had to be given higher priority."

As Not Just Sheep & Rugby reported recently many local government lawyers are against reform of the common good legislation. One of them told the committee he would prefer to see all common good assets - across Scotland these value tens if not hundreds of millions of pounds - handed over to local authorities to "do with as they please".

But according to retired Selkirk GP Dr Lindsay Neil, a fierce campaigner in the defence of Selkirk's common good property and funds, such a proposal was likely to provoke a riot in Hawick.

Some of the strongest written submissions to Mr Doris's committee did in fact emanate from Hawick.

Former Hawick councillor Andrew Farquhar told the committee: " Common Good assets have not fared well under Council Stewardship due to councils having to do more with less.   Administering the Common Good is low down in their list of priorities.  E.g. Progress made with registers of assets! 

"In communities which still have Common Good assets their full potential is not being realised. The assets could do much more if properly managed under some form of local democratic control with good management."

Meanwhile Hawick businessman Derick Tait, who has served on a number of local civic committees wrote:"Sadly, as local government has become bigger (but not better), management of individual common goods has merged and passed into the trusteeship of those who neither appreciate their significance and importance to local communities, nor care particularly about their management.

"In recent years, I personally have been aware of instances of failure to manage common goods properly in three towns, principally because of lack of local knowledge.  There have also been recent instances in my home town Hawick, where public meetings have been convened to demand proper and dedicated management by trustees (councillors) from outwith the town.  Unfortunately, as the drive towards centralisation and city regions develops, remoteness of trustees from local knowledge will continue."

One advocate for change who observed the committee's discussions at close quarters told us: " You can tell there was a lack of interest by the fact that three members didn’t even ask any questions. Not sure many committee members even read the written evidence."

The decision to kick this issue into the long grass - possibly for decades - must be regarded as regrettable. It means past abuses of common good assets, and the mismanagement of land, property and cash may well continue into the future.

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