By Andy Wightman
When Robert the Bruce took to the field at Bannockburn in June 1314 and defeated the English forces, he secured the Crown of Scotland for himself. Much more than a mere symbol, it represented the ultimate ownership of all the land of Scotland. The feudal powers vested in the Monarch enabled Bruce to make extensive feudal grants of land to the nobility. Over the following centuries, land was parcelled out and the extensive commons were privatised. But some Crown rights remained and today, Scotland’s Crown lands comprise a wide range of property rights and interests that have survived centuries of feudal power.
The list includes rural estates, naturally occurring oysters in the sea, gold and silver, much of the foreshore, historic castles and palaces, large whales, the seabed, the property of those who die with no heir and the public right of navigation. Some of this stuff is pretty archaic and of minor significance but some (such as the seabed) is of huge significance to local communities and to the wider economy.
Who administers these rights? A number are administered by the Scottish Government through, for example the Crown Office. But the more valuable rights including the foreshore and the seabed form part of the Crown Estate administered in London by the Crown Estate Commissioners (CEC).
The first thing to note about this outfit is that it styles itself “The Crown Estate” which causes much confusion since this term (defined in the Crown Estate Act of 1961) actually describes what the CEC manages. The second thing to note is that the property rights that make up the Crown Estate are all defined by the Scots law of property and are all devolved (so in theory they could all be abolished by the Scottish Parliament). The CEC merely administer these public rights and collect the revenues (£9.1 million in 2009-10).
Why is the Crown Estate still administered by Commissioners in London who are unaccountable to the Scottish Parliament and yet manage Scottish public land? Why, when all the planning and environmental regulation is carried out by Scottish local authorities and Marine Scotland at some cost to the public purse do net revenues still flow straight to HM Treasury?
There are historical answers to these questions of course but the fact that this state of affairs persists is partly down to a belief that the CEC is somehow untouchable, that it is a reserved matter, that their activities bring benefits to Scotland and that anything that touches on the Crown must in any case be tricky because it involves the Queen.
Add to this the widespread confusion about what the CEC actually is and does, it’s confusing rebranding, and the desire by the SNP Government to play ball with these people so as not to rock the boat over the development of marine renewables, and you can quickly see that reform appears just a bit too difficult.
On the ground, however, the CEC may have some supporters but all too often it has been viewed as an obstacle to development with little obvious purpose beyond extracting rents. It has also played a highly political game with land rights. On the one hand, the CEC could not disguise its distaste at being asked to investigate the ownership of the Cuillin in Skye in 2000 but on the other, it deploys all the legal muscle it can to challenge any local assertion of local land rights. In Selkirk, for example, locals had to struggle for 12 years to assert common ownership of the salmon fishings of the burgh.
It is an anomaly and an anachronism that the CEC administer Scottish public property rights. It is in the interests of good governance and public administration that all such rights should be brought together under the control of the Scottish Parliament. But it should not stop there and a scheme of devolution of these rights should be devised to allow local authorities and local communities to take control at a local level.
Over the past few weeks, a growing alliance of interests has come together to demand that the CEC no longer have any role in the administration of the Crown Estate in Scotland. It includes the former Scotland Office Minister, Brian Wilson, the Scottish Islands Federation, Highland Council, Orkney Islands Council, the journalist and broadcaster Lesley Riddoch, Local People Leading, historian Professor James Hunter and the think tank, Reform Scotland.
Making such a change should not be difficult and involves a minor change to the Crown Estate Act 1961 or the removal of two sub-paragraphs in Schedule 5 of the Scotland Act 1998. It is a reform that the Highland Liberal Democrat MPs have long championed together with Labour politicians such as Brian Wilson and, more recently by SNP MSPs. Earlier this week, the Scottish Government published a submission to the Holyrood Scotland Bill Committee which made a powerful argument for reform. (2)
Now that the opportunity has arisen to do something about the CEC, those who have argued the cause in the past need now to stand up and be counted. If nothing changes, the Scottish Parliament, as previously mentioned, has the power to simply abolish these Crown rights but that is something of a nuclear option.
Next week I will be giving evidence to the Scotland Bill Committee at Holyrood and to the Scottish Affairs Committee in Westminster. (3) There is growing optimism that we can secure the repatriation of control over the Crown Estate but everything depends on the will of the Liberal Democrats, Labour and the Tories to make this happen.
The opportunity will probably not arise again for many years. It’s time for Scotland’s politicians to rise to the challenge.
(1) Section 1(5) of the Crown Estate Act 1961 reads as follows: “The validity of transactions entered into by the Commissioners shall not be called in question on any suggestion of their not having acted in accordance with the provisions of this Act regulating the exercise of their powers, or of their having otherwise acted in excess of their authority, nor shall any person dealing with the Commissioners be concerned to inquire as to the extent of their authority or the observance of any restrictions on the exercise of their powers.”