Common Good is not well
understood nowadays. Here is an article
written by Dr Lindsay Neil of Selkirk Community Council and published in the
magazine of the Association of Scottish Community Councils (ASCC). This article explains some important aspects
of the Scottish Common Good Act enacted by King James IV in 1491 and still in force. Common Good is unique to Scotland and is a
valuable part of our heritage but its meaning became distorted after ‘’regionalisation’’
which meant the dissolving of the Burgh Councils in 1975. Now have had 40 years of overgrown
bureaucratic council control and this has undermined the ancient rights and
powers of the old burghs.
Dr Lindsay Neil's article:
Common Good Ownership
Who owns the Common Good?
Common Good Funds (CGF), which are peculiar to Scotland only, are
reminders of the days when Burghs were the centerpiece of Scotland ’s local
administration. The monarch, in times past, used the mechanism of granting land
and privileges to settlements, thereby creating Royal Burghs, in return for
dues to the Royal Treasury. Landowners/nobles also created slightly different
‘Burghs of Barony’ with similar grants for a roughly similar purpose. These
grants became the ‘Common Good’ of the Burgh. Trusts of various kinds exist for
towns, villages etc, but are outwith the Common Good and the CG law does not
apply to them.
CGFs typically now
consist of buildings, playing fields, parks, fishing rights etc. and other
‘fixed’ property in the ‘former’ Scottish Burghs and a quantity of ‘moveable
assets’ such as ceremonial chains of office and pictures etc acquired out of
Burgh funds or as gifts to the Burghs over the years. CGFs were used and
controlled by councils for the benefit of the citizens of the burghs and only for
them. Particularly since the Local Government ( Scotland ) Act 1973, the
identity of what actually comprises the Common Good of a ‘former’ Burgh has
become progressively more difficult to determine owing to the passage of time,
disposals of CG assets, the inheritance by Local Authorities (LAs) of
inaccurate lists from the Burgh Councils and poor record keeping since 1973 by
LAs. CGFs have legislation protecting them but it is not perfect.
The wording of the still
extant Common Good Act of 1491 under King James IV enacted that the Common Good
is ‘kepit to the commoune gude of the toun and to be spendit in commoune And
necessare thingis of the burght be the avise of the consale of the toune for
the tyme…’
This makes a clear
distinction between town inhabitants as beneficiaries and the relevant Burgh
Councils tasked by the 1491 Act to administer the common good.
While in subsequent
centuries, there was no dispute that legal title to the CG was deemed held by
the Burgh Councils, this did not alter the fact that the beneficial ownership
remained with the townspeople and still does to the present day.
Nowadays, the ownership
of the Common Good has given rise to much confusion in the minds of many, not
least in the thinking of some members of the legal profession itself. An
example of this is a recently published book on Common Good Law* which states
baldly on page one, that the Common Good is ‘owned outright’ by the LA.
This misguided opening statement is wrong, has introduced unnecessary confusion
and, at the very least, should be challenged and not relied upon. The word
‘outright’ is incorrect and the author should write and publish a correction of
this assertion. His misunderstanding and that of others who now quote him,
arises from a failure to appreciate the difference between the ‘vesting’ of a
title giving legal ownership and the actual beneficial ownership. An analogy,
although not exact, is that of offshore nominee trusts where the nominees are
the legal owners, but the beneficiaries are UK residents.
The ‘transfer of
ownership’ of CGFs that occurred at the enactment of the Local Government
(Scotland) Act 1973 – actually on May 16th 1975 - involved the
transfer of legal title only to the new District Councils and the
beneficial ownership remained with the inhabitants of a ‘former’ Burgh. The LA
was given powers under the act to administer the Common Good for the benefit of
the Burgh and its inhabitants, and the Act gave powers to all elected local
councillors to act as what constituted ‘trustees’ of all Common Good Funds
within what eventually became a unitary authority area under a similar local
government act of 1995. This ‘trusteeship’ carries a fiduciary duty which takes
equal precedence in law over their other duties as LA councillors but few
councillors are aware of this fact. Conflict of interest is inevitable.
If the 1973 Act had had
the intention of confiscating all CG assets and giving them to LAs, it would
have said so; it didn’t, instead it went into detail as to how the assets
should be administered by LAs without tampering with the question of ownership
apart from transferring the titles by vesting.
Because the
administration of Common Good Funds (CGF) prior to 1973 varied from place to
place, that part of the 1973 Act relating to CGFs was intended to remove
irregularities and introduce a measure of commonality throughout Scotland in
their management. This it largely achieved, but gave rise to several problems
which remain. They are:
1) The 1973 Act was
drafted in such a way that allowed different interpretations of it by
individual LAs. The act and subsequent revisions specify that CGFs must be
administered ‘having regard to the interests of the inhabitants’. Because this
passage is legally imprecise, it allows a range of options to a LA in its
observance. LAs can choose to override the expressed opinion of communities
through their CCs over what should happen to their CGFs, and CCs are powerless
to do anything about it.unless they embark on expensive legal action they can’t
afford.
2) In general, the
often incomplete and inaccurate registers of ‘fixed’ and ‘moveable’ assets
inherited by LAs from Burgh Councils, have not been investigated, corrected or
kept up-to-date.
3) Some LAs have
assumed ownership of CG assets. Many CGF assets are no longer administered by
the LAs as CGF property but are administered by different LA departments in the
mistaken belief that they are ‘council property outright’ and due to the
passage of time their association with, and ownership by the CGF has been
largely forgotten.
4) Under the Act, a
community has virtually no control over the administration of its own CGF which
it did have during the aegis of former Burgh Councils.
5) Elected councilors,
who are the ‘trustees’ of all CGFs, may reside elsewhere than where the CGF
exists, are often unfamiliar with the extent of it and are largely unfamiliar
with Common Good law. Little attempt is made by LAs to correct this.
6) Some LAs have chosen to
convert the CGFs in their stewardship into charitable trusts. The effect of
this is to render CGFs less subject to scrutiny by the beneficial owners, the
accounts less available for public scrutiny, and puts the assets of the CGF in
jeopardy although there are complex implications to selling trust assets which
are still the subject of legal debate.
Community Councils will
recognise that the administration of CGFs is complex; their administration is
an irksome and disproportionately onerous burden for an LA and it comprises a
relatively small amount in terms of their overall budget. Investigations to
assign ownership correctly, is both time consuming and costly, and LAs claim a
‘lack of resources’ to do this. It is nevertheless the duty of an LA to carry
out the obligations conferred on it by the various acts and be punctilious in
doing so. It should therefore be our collective aim as community councils to
co-operate with and assist the LAs in achieving this, getting the registers in order,
identifying what belongs to the Common Good and what does not, before time and
usage makes it too difficult. It is much too important an issue for Community
Councils, as the elected body in closest touch with local affairs, to ignore.
It may involve lengthy research of old Burgh/town council records,
Sasines etc and speaking to locals who remember what might have been part of
the CG. It is time well spent, very often fascinating and a sacrifice of time
and effort worth making for your community. It took us 13 years to restore to
the CG the fishing rights in Selkirk which the Crown took in 1911. We are
currently claiming restoration of a park from the LA, chasing unpaid rents and
doing a forensic inspection of the CG accounts. Our research still goes on and
we will be claiming back more. Google Andy Wightman’s excellent paper ‘Common
Good – A Quick Guide’ for an overview
and write to John Swinney
MSP ands tell him if you want more involvement in your Common Good. Do it now!
Without doubt, the most
reliable guardian of any property is the owner, not the title holder.
You own your
Common Good. Remember that.
Dr Lindsay Neil
Vice Chairman,
The Royal Burgh of Selkirk and District Community Council
Dr Neil’s article together with Andy Wightman’s Quick Guide to
Common Good helps to put into context controversy which still surrounds
Langholm’s Kilngreen, the most important
part of the town’s Commonty established by a Court of Session ruling in
1759.
A future blog will describe how the Duke of Buccleuch nevertheless grabbed the
Kilngreen when it did not belong to him, then generously ‘’donated’’ it to the
people of Langholm in 1922, an example of the kind of legal
theft covered by Andy Wightman’s book, ‘’The
Poor Had No Lawyers’’ !
