“For the commoune goode of the toune”

The Common Good property held by Scottish local authorities

“The common good is a fund of money and assets, formerly owned by a burgh and now owned and administered by the local authority for the relevant area”  Andrew Ferguson, Common Good Law (2nd edition, 2019) p.1

That description by the author of the leading text on common good law is an accurate description of the “common good”.

It is a fund of money and assets. It can include money and investments, civic regalia, artworks, and much else. However, the most significant element of the common good, and source of legal questions and disputes, is land. That land normally includes the buildings on it, as the significant recent case of Guild v Angus, [2020] CSIH 50, 2021 S.C. 83, makes clear.

In that case, Mr Guild challenged Angus Council’s decision to demolish a leisure centre in Forfar, located in a public park which was part of common good land. The Council argued that the leisure centre itself was not common good property. The Council was successful in the Outer House, but that decision was overturned (by a majority) in the Inner House.

On that question, Lord President Carloway said

“unless structures which are built on the land are held under a separate title, they will be regarded as having acceded to that land and thus become part of it and the title which relates to it. That accords with the principle, which stems from the Roman Law and is laid down by the institutional writers (Stair, Institutions II, i, 40; Erskine, Institute II, i, 15; Bell, Principles , para 937), and with precedent ( Brand’s Trs v Brand’s Trs , Lord Cairns LC, p 20, Lord Chelmsford, p 23). This principle applies to common good land ( Magistrates of Banff v Ruthin Castle Ltd , Lord Mackay, p 49). The Lochside Leisure Centre is therefore part of the common good land. The accounting practices of the respondents and their intentions are irrelevant to this issue.”

The common good property held by local authorities today originates in the common good of a burgh, a concept which has existed for more than 500 years, as the following extract (still in force) from the Common Good Act, 1491, demonstrates.

Item it is statut and ordinit that the commoune gud of all our souerane lordis burrowis within the realme be obseruit and kepit to the commoune gude of the toune and to be spendit in commoune And necessare thingis of the burght be the avise of the consale of the toune for the tyme and dekkynnis of craftis quhare thai ar.. (Common Good Act 1491, s. 1)

Burghs were the unit of local government of most established urban communities in Scotland for almost a thousand years, until a local government reorganisation which came into effect in 1975. Burghs may have originated in many ways: as royal burghs, burghs of regality, burghs of barony, ‘police burghs’ – burghs established under a number of 19th century “Burgh Police Acts” (which is a misnomer, as those burghs had powers over many aspects of local government).

The history is interesting, but is only of relevance for this article because common good property can only exist today if it originated in the common good of one of those burghs. There is not, therefore, a ‘common good ‘ for areas of one of today’s local authorities which were not comprised within one of those burghs (although counties and burghs without a Common Good were empowered under the Local Government (Scotland) Act 1947 to set up fee funds from certain fees and commissions for similar purposes).

All those burghs were abolished as separate units of local government in 1975. Their common good funds were transferred to the successor local authorities, who took over the ownership and administration of the relevant areas containing those burghs.

Local government was again reorganised in 1996 by the Local Government etc. (Scotland) Act 1994. Under section 15(4) of that Act, common good property was once again transferred to successor authorities, who must administer that property having regard to the interests of the inhabitants of the area to which the common good related prior to 16th May 1975, or, in the case of the councils for Aberdeen, Dundee, Edinburgh and Glasgow, have regard to the interests of all the inhabitants of their areas.

It should be noted that the requirement is to “have regard to the interests of”, not “for the benefit of”, or some such wording, nor is there any requirement that any such property should for all time be administered in such a way that it is situated within that area.

Mention should also be made here of the fact that some community councils have been allowed to describe themselves as Royal Burghs eg Royal Burgh of Cupar Community Council. That does not give them any ownership or control over the common good of those former burghs – although they have certain rights to be consulted because of their status as community councils, as is explained later.

Until recently, the extent of common good property throughout Scotland was unknown. Many local authorities believed, or reported, that they had hardly any common good property at all. However, in the last decade or so, there has been a growing interest in common good property, and that has led to an awareness of the significant extent, and the value of, property held on the common good.

Since 2017 the extent of common good property has become more apparent because of s. 102 of the Community Empowerment (Scotland) Act 2015, which requires all local authorities to establish and maintain a public register of property held by the authority as part of the common good. From inspection of a number of those, it is obvious that the approach taken by different local authorities to what property should be regarded as common good varies.

It should be remembered that the register is not a definitive list of the common good property in that area. Other property may be added if more information becomes available. Some local authorities have included items of property which are identified as potentially within the common good, and are the subject of further investigation.

Removal from the list of property included in error is also possible, although unlikely, because of the extensive public consultation that would have been undertaken prior to its publication.

What is clear that the requirement to establish a register, with the public input into that process that was required by the legislation, led to a substantial increase in the extent of the property that was now considered to be within the ‘common good’. That the common good should be so extensive should not be surprising,  given that there is clear authority that

 “…all burgh property, in so far as it has not been acquired by statutory powers or forms part of separate trust estate administered by burghs, must form part of the common good of the burgh.” Magistrates of Banff v Ruthin Castle Ltd, 1944 S.C. 36, at P.58

Such a broad definition may alarm some of those who direct or manage local authorities. It should be borne in mind, however, that much of the land previously acquired by a burgh, is likely to have been acquired under statutory powers eg for housing, education, parks and recreation, public halls, water and drainage, fire stations, and many more besides.

Furthermore, if the land is not within the area of a former burgh, it will not form part of common good (although it is presumably possible that common good funds may have been used to purchase property outside the former burgh’s boundary, which would therefore be comprised within that common good property).

One question which may be asked is what is the “common good” which property within it is required to serve. It appears to me that there must be an argument that, if the item of property has been constituted as common good property for a specific purpose, the common good property in question should only be used for those purposes, or purposes reasonably closely related to them.

This then raises the question of what happens to any income derived from that property, or from capital receipts if it is disposed of. This will normally (unless the court says otherwise) be paid into common good funds, be used to support running costs of other common good property, or to acquire new property to be held as common good (even though it appears to me that the nature of common good property, as something which has been inherited from now defunct burghs, means that the general rule is probably that new common good cannot be created).

If that income or capital derives from common good property which is dedicated to a particular purpose, then it might also be argued that it too should only be allocated to support that purpose, or purposes related to it. However, the practice in most, perhaps all authorities, appears be that all common good property is held in one account for each former burgh, and any income or expenditure arising from it is allocated to those dedicated accounts. That is certainly the approach recommended by LASAAC in the guidance it produced in 2007 on accounting for the common good. (Note, however, the comments made by Lord Carloway in Guild, set out above).

However, it is perhaps a matter which should be borne in mind in the management and even more so, the disposal, of common good property, particularly when making an application to the court for approval of a disposal or appropriation of common good land.

In any event, what happens if an authority wants to change the use of the property beyond that permitted by the founding deed (or customary use), or dispose of it?

Some older cases suggest that property could be regarded as being removed from the common good with no great difficulty, if the activities concerned could be undertaken elsewhere, e.g. in Magistrates of Kirkcaldy v Marks & Spencer Limited, 1937 S.L.T. 574, Cockenzie and Port Seton Community Council v East Lothian District Council, 1997 S.L.T. 81. Other cases indicated a much stricter approach, where the common good status of property was rigorously protected against removal from that status.

However, the more recent approach of the court has left no doubt of the special protected status of common good property.

Scots law has been zealous in the protection of common good property, even in cases in which the local authority proposed to put common good land to what was prima facie a reasonable and productive community use (see, eg Grahame v Magistrates of Kirkcaldy , where the court held that the ground was vested in the magistrates for the common use and enjoyment of the inhabitants, and that neither previous encroachments, nor its neglected condition (as a public dung stand) nor the fact that it was of little or no value to the public, entitled the magistrates to apply it to any purpose inconsistent with such common use and enjoyment — even as town stables; see also Portobello Park Action Group Association v City of Edinburgh Council). If the respondents’ argument is sound, these cases could have been circumvented by the local authority simply leasing the land under a ‘notional tenancy’ to itself to enable buildings to be erected thereon in the public interest” (Guild v Angus, [2020] CSIH 50, 2021 S.C. 83) Lord Menzies, at para 37.

An authority which seeks to “change the use” (that is, appropriate) or dispose of common good property must therefore rely on the statutory provisions governing the disposal of common good property. 

These relate to land only, but it is of course land that is the main focus of interest in common good matters.

The relevant provisions are to be found in the Local Government (Scotland) Act 1973, and are as follows.

s. 75.— Disposal, etc., of land forming part of the common good.

(1)  The provisions of this Part of this Act with respect to the appropriation or disposal of land belonging to a local authority shall apply in the case of land forming part of the common good of an authority with respect to which land no question arises as to the right of the authority to alienate.

(2)   Where a local authority desire to appropriate or dispose of land forming part of the common good with respect to which land a question arises as to the right of the authority to alienate, they may apply to the Court of Session or the sheriff to authorise them to appropriate or dispose of the land, and the Court or sheriff may, if they think fit, authorise the authority to appropriate or dispose of the land subject to such conditions, if any, as they may impose, and the authority shall be entitled to appropriate or dispose of the land accordingly.

(3)   The Court of Session or sheriff acting under subsection (2) above may impose a condition requiring that the local authority shall provide in substitution for the land proposed to be appropriated or disposed of other land to be used for the same purpose for which the former land was used.

Disposals or any other use of common good property, whether alienable or inalienable, still have to be undertaken within the general rules applicable to local government finance eg on best value, capital controls, etc. (City of Aberdeen DC v Secretary of State for Scotland, 1990 SLT 291). In that case, it was held that the Council still required capital consent to use funds in common good account to build a leisure centre.

From a practical point of view, as a local authority (and a potential purchaser or user of property) will not want to run the risk of the transaction being challenged at a later date, authorities tend to apply to the court if there is even only a slight possibility that there is such a question. Not surprisingly there is limited case law on when there is no such question, but there is authoritative case law on when land cannot be alienated.

“It appears to me that in the most extended view which can be taken of the constitution of public rights of this description, there are at least three ways in which a public use of burgh property may be acquired. The land may be appropriated to public uses in the charter or original grant; the land, after it is vested in a public body, such as a town-council, may be irrevocably appropriated to public uses by the act of the town-council itself; and again it may be so appropriated, or rather the inference may be drawn that it was originally appropriated to public uses from evidence that the land has been so used and enjoyed for time immemorial.”

Murray v Magistrates and Town-Council of Forfar,(1893) 20 R. 908, at p. 918.

However, even if the there is no right to alienate, s. 75 does give the court the apparent power to allow the removal of land from common good entirely, and to impose wide range of conditions if that is to be allowed.

Until recently, those provisions of the 1973 Act were the only ones which specifically governed the disposal and use of common good property. However, the Community  Empowerment (Scotland) Act 2015 introduced a consultation process.

s. 104 Disposal and use of common good property: consultation

(1)  Subsection (2) applies where a local authority is considering—

(a)  disposing of any property which is held by the authority as part of the common good, or

(b)  changing the use to which any such property is put.

(2)  Before taking any decision to dispose of, or change the use of, such property the local authority must publish details about the proposed disposal or, as the case may be, the use to which the authority proposes to put the property.

(3)  The details may be published in such a way as the local authority may determine.

(4)  On publishing details about its proposals under subsection (2), the local authority must—

(a)  notify the bodies mentioned in subsection (5) of the publication, and

(b)  invite those bodies to make representations in respect of the proposals.

(5)  The bodies are—

(a)  where the local authority is Aberdeen City Council, Dundee City Council, the City of Edinburgh Council or Glasgow City Council, any community council established for the local authority’s area,

(b)  where the local authority is any other council, any community council whose area consists of or includes the area, or part of the area, to which the property mentioned in subsection (1) related prior to 16 May 1975, and

(c)  any community body that is known by the authority to have an interest in the property.

Consideration must be given to representations received in that process. Statutory guidance has been published by the Scottish Government guidance on how the consultation procedure should be undertaken:

https://www.gov.scot/publications/community-empowerment-common-good-property-guidance-local-authorities/

Guild v Angus, [2020] CSIH 50, 2021 S.C. 83) emphasises that the provisions of section 104 have to be interpreted broadly. At para 28, Lord Menzies says:

When considering the proper construction of sec 104 of the 2015 Act it is, I think, important to bear in mind the underlying purpose of the legislation (as indeed it is in any exercise of statutory construction). Part 8 of the Act , which deals with common good property, is concerned (as the title of the Act suggests) with empowering communities. Section 102 requires a local authority to establish and maintain a common good register, and before…

At para 29: The aim is transparency, and encouragement of community involvement. As the policy memorandum to the Bill put it (para 87):’The aim of Part 6 of the Bill is to increase transparency about the existence, use and disposal of common good assets, and to increase community involvement in decisions taken about their identification, use and disposal.’..

And at para 30:

 What the 2015 Act is not about is prohibiting, preventing or regulating the actual disposal of, or appropriation of, common good property: that is dealt with elsewhere, by the common law, or by sec 75 of the Local Government (Scotland) Act 1973 , and the requirement to apply to the court for authority. Section 104 of the 2015 Act is all about publication and consultation at an earlier stage, before any decision has been taken by the local authority to dispose of or change the use of property held as part of the common good, and when the local authority is only considering disposing of or changing the use of such property.

31.  The fact that this relatively new statutory provision is about transparency and encouragement of community involvement, and not (or at least not directly) about the identification of common good property or about the authority to dispose of or appropriate such property may mean that a broader interpretation of some of the terms used in it than would be applied in different contexts is appropriate”.

An example of a consultation document produced recently by a local authority, for an application for major change of use of common good property can be seen here: https://www.northlanarkshire.gov.uk/your-community/working-communities/consultations/closed-consultations/kildonan-street-municipal-building-consultation Other consultation documents may be much smaller in scope, and that is quite reasonable for a straightforward application for transfer. However, in a complex application for appropriation or disposal of common good property, as in the above one, a comprehensive consultation document is probably desirable. Showing that the consultation process was thorough may certainly be of importance in persuading the court to grant the application.

This article is based on notes prepared for a webinar presentation given by Terra Firma Chambers, on 7 November 2022.

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Greening the Scottish Government: What the SNP-Green deal could mean for the natural environment in Scotland

In this post, I look at the commitments made in the deal, and assess how radical an impact they could have on the natural environment in Scotland

The ‘co-operation agreement’ between the SNP Scottish Government and the Scottish Green Party includes, as one of its sections, policies on the natural environment.

The headline commitment is to a “Natural Environment Bill”. There is an “aim to introduce” this into the Parliament in year three of the current Scottish Parliament session (i.e. 2023/2024).

It is promised that the Bill will:

  • put in place key legislative changes to restore and protect nature, including targets for nature restoration that cover land and sea, and an effective, statutory, target-setting monitoring, enforcing and reporting framework
  • contain targets based on an overarching goal of preventing any further extinctions of wildlife and halting declines by 2030, and making significant progress in restoring Scotland’s natural environment by 2045
  • contain targets that are achievable and challenging. These targets will be developed in consideration of available evidence and through consultation, and are expected to include outcome targets that accommodate species abundance, distribution & extinction risk, and habitat quality and extent..
  • cover key actions to deliver the targets, including the agreement to protect 30% of Scotland’s land and seas by 2030, and highly protect 10%.

As is inevitable in any such wide-ranging proposal for legislation, the full significance of the bill will only be known when the targets and changes are published. Clearly, however, the Bill has the potential for a significant impact on the natural environment, if its eventual scope is as wide as is promised.

There is also a free-standing commitment to expand the newly established “Nature Restoration Fund” over the duration of this parliamentary session and encompass multi-year funding. That is promised to make an important contribution to meeting those targets and restoring Scotland’s terrestrial and marine environment. How extensive that impact will be of course depends both on those targets, and how much extra cash will be given to the fund. Providing multi-year funding will certainly help to widen its impact, given that restoration projects are likely to require funding over a number of years.

The policy programme also commits to a review of environmental justice, including the case for an environmental court, taking place during the “current parliamentary session”.  

Beyond these overarching policies, there are also commitments to specific measures in a number of areas, as follows.

National Parks

At least one new National Park is to be designated by the end of the parliamentary session, with provisos that “National Parks should be designated only in response to local community demand and … would be smaller in scale than existing parks

Agriculture

In agriculture, there is a commitment to ensuring that “the sector makes the emission reductions required to contribute to Scotland’s world-leading emissions targets, to support and deliver nature restoration and a just transition to net zero, and to produce high quality food”.

To achieve this, the paper promises that:

We will work with the sector and stakeholders to bring forward a consultation on the options for future agriculture and wider land use support through a Bill to replace the current Common Agricultural Policy framework for agriculture and land use support. The Bill will be introduced in 2023 to deliver:

  • a new support framework that will include delivering climate mitigation and adaptation, nature restoration and high quality food production
  • integration of enhanced conditionality against public benefits, with targeted outcomes for biodiversity gain and low emissions production
  • increased equality of opportunity, improving business resilience, efficiency and profitability.”

Specific commitments on agriculture are few, which is not surprising given that the task of transforming policies to the new post-Brexit is a complex and substantial exercise. It can be noted, though that there are promises to:

  • stay aligned (where practicable) with new EU measures and policy developments ensuring Scotland prioritises the transition to net zero, the restoration of nature and the sustainable production of high quality food
  • support the necessary change in land use in Scotland in line with the recommendations of the Just Transition Commission
  • support the growth of the organic farming sector through the establishment of a new Organic Food and Farming Action Plan with a target for at least the doubling of the area of land under organic management by the end of the .parliamentary session.

Regional Land Use Partnerships

Five pilot Regional Land Use Partnerships (RLUPs) were established this year. There is a commitment that if those pilots “can demonstrate that they meet expectations relating to the above, and show that they have taken a democratic, local approach” then

  • plans will be developed for a second phase from 2023 with the aim of further roll out across the country before the new rural support scheme is established
  • RLUPs will take into consideration the delivery of statutory climate and nature targets on a regional basis, and
  • Consideration will be given how RLUPs can influence public funding streams.

Forestry and woodlands

By contrast with some other areas of policy, many of the commitments here are more concrete.

The policy programme commits to increasing woodland creation “in line with existing recently increased targets, and to explore opportunities to go further and faster, particularly on nature restoration”, with specific commitments to:

  • increase annual woodland creation targets to 18,000 hectares per year by 2024/25; increase the annual native woodland creation target from 3000 to 4000 hectares, setting evidence-based targets for both native woodlands and natural regeneration.
  • increase Forestry Land Scotland’s capacity to grow the public forest through the acquisition of land, particularly in National and Regional Parks, by increasing capital funding.
  • protect Scotland’s ancient woods through establishing a National Register of Ancient Woodlands, and by encouraging owners and managers to maintain them and improve their condition, providing support through the Forestry Grant Scheme.

More general commitments are given to:

  • consult on ways to increase easily accessible, sustainably managed woodlands, including native woodlands, in urban or “peri-urban areas”…
  • explore the opportunities to pilot landscape-scale projects involving natural regeneration of woodlands…
  • support public sector bodies, as part of their statutory duty under the Forestry and Land Management (Scotland) Act 2018, to identify and implement opportunities to increase tree cover on land they own and manage, with an emphasis on native woodland and natural regeneration. (This may mean further legislative changes are required to strengthen that duty).
  • ensure that the replacement for the Common Agricultural Policy ring-fences funds for tree planting, orchard creation, and woodland regeneration, as well as support for the development of rural businesses linked with forestry
  • implement the recommendations of the Deer Management Working Group.

Land reform

Consultation is to be undertaken on further land reform measures, in particular “to tackle the scale and concentration of land ownership in rural and urban Scotland. This will include a public interest test to apply to transfers of particularly large scale land holdings which will include a right of pre-emption in favour of community.”

A Land Reform Bill will be introduced by the end of 2023, and there is a specific commitment to double the Scottish Land Fund from £10 million to £20 million per annum by the end of the parliamentary session.

Aquaculture

The paper accepts that “that the status quo of aquaculture regulation is not an option”, and it includes commitments to:

  • reform the regulatory and planning framework, starting with an independent review which will make recommendations for further work by the end of 2021
  • develop a vision and strategy for sustainable aquaculture that places an enhanced emphasis on environmental protection and community benefits
  • begin an immediate programme of work to better protect wildlife and the environment.

Marine protection

This is another area of policy with more specific commitments, including promises to:

  • deliver fisheries management measures for existing Marine Protected Areas (MPAs) where these are not already in place, as well as key coastal biodiversity locations outside of these sites, by March 2024 at the latest
  • add to the existing MPA network by designating Protected Marine Areas (HPMAs) covering at least 10% of Scotland’s seas
  • take specific measures to protect the inshore seabed in areas outwith MPA and HPMAs, including a possible cap to fishing activity in inshore waters
  • ensure the recovery of “priority marine features” as part of wider ecosystem recovery and biodiversity enhancement.

All these measures are to be implemented taking into account “socio-economic factors affecting the resilience and viability of marine industries and the coastal communities which depend on them”, with plenty of public engagement and consultation.

Species protection

The programme promises “ urgent action is needed to tackle wildlife crime and to address the environmental impacts of intensive grouse moor management”, together with a review of licensing or further regulation including over muirburn, wildlife control, the use of medicated grit, and wildlife crime.

It also promises to support the continued expansion of the beaver population, including into more locations in Scotland.

Good Food Nation Bill

The programme restates the Scottish Government’s commitment to a “ Good Food Nation Bill”, which will include:

  • placing duties on the Scottish Government and some public bodies “to produce statements of policy in relation to food and make provision as to the effect of those statements
  • require those statements to set out the main outcomes to be achieved in relation to food-related issues, the policies needed to do this and the indicators or other measures required to assess progress

In addition, the promised Human Rights Bill will introduce a right to adequate food, as part of the overall right to an adequate standard of living.

Consideration will also be given to the should be given to the need for a statutory body, such as a Food Commission.

What difference will these policies make?

So those are the commitments. What difference will they make to Scotland’s natural environment?

The first and obvious point to make is that many of the commitments are ones to “bring forward” proposals, to hold “reviews” and “consultations”, and to then pass laws, set targets, and the like. Their impact will obviously only be clear once those promises are turned into legislation, decisions are taken by government, and funds are allocated.

However, the package of proposals certainly sets out a framework which could be used to have dramatic, and beneficial, effect on Scotland’s natural environment. The extent to which that happens will of course depend on the decisions taken by the Scottish Ministers once all the promised reviews and consultation have taken place. The possible implications of a radical use of the commitments made on agricultural and marine businesses, and landowners, in particular are substantial, and there is likely to be a lot of lobbying and pressure by vested interests and campaign groups to get their desired outcomes.

The commitments in the area of the natural environment are extensive, and will need a lot civil service – and parliamentary time – to put into effect. It can be seen that many of the commitments are to implement policies by the end of the current parliamentary session, in April 2026. That’s not unreasonable, given the complexity of many of the policies, but there could be a risk of a “policy blockage” at the end of the parliamentary session, in which it is not just possible to get the necessary measures through in time.

To be fair, there are a number of policy commitments which the programme aims to bring forward earlier, which is welcome. But the scale of the programme in this area will need careful management and leadership, including by Ministers, if some of them do not fall by the wayside.

The risk of this happening can be shown by the fact that the programme only promises a further review of environmental justice within the current parliamentary session (i.e. by 2026). The Scottish Government has actually been consulting on environmental justice in one form or another since 2006.

Similarly, the idea of a new Scottish Environment Act has been around for many years: Scottish Environment Link was calling for that back in July 2019. Ministers from the two governing parties – as well as opposition parties, and individual MSPs – need to ensure that the “aim to introduce” the proposed “Natural Environment Bill” at some time in 2023/2024 becomes a definite commitment to do so at the beginning of that period. And they should make sure it passes well before the end of the parliamentary session in 2026.

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Applying for settled and pre-settled status requires genuine residence

Although the UK ceased to be a member of the EU on 31 January 2020, the transition period arrangements mean that EU citizens can still apply for leave to remain under the EU Settlement Scheme even if they move to the UK after that date, as long as they take up residency in the UK by 31 December 2020 (to be precise, before 11pm on that date).

I am aware, from discussions on the internet and questions at meetings, that some EU citizens have wondered whether they could travel to the UK before the end of 2020 and stay in the UK temporarily, perhaps for a very short period, with the idea of acquiring status under the Settlement Scheme as a type of ‘insurance policy’. The intention is not to live in the UK at that stage, but to be able to use that status to secure a right to reside in the UK at some future date if they wished or needed to do so.

In my view, those who are thinking about such a tactic need to understand that it might not succeed and, in the worst case, could have serious consequences.

The rules on pre-settled status

It is true that under Appendix EU of the Immigration Rules, which put into effect the citizens’ rights provisions of the Withdrawal Agreement, a qualifying EU citizen can move to the UK any time before the end of the transition period on 31 December 2020. But those rules also make it clear that someone must have completed a “continuous qualifying period in the UK” to be eligible for the EU Settlement Scheme.

For those who are applying for pre-settled status, that will be a continuous qualifying period of less than five years, which will of course have to be before the end of the transition period. The rules do not specify any minimum length, so that period could indeed be very short.

It should be noted, though, that Annex 1 of Appendix EU defines a “continuous qualifying period” as being a “period of residence in the UK and Islands” (with minor exceptions). Exactly what is meant by “residence” is not defined in Appendix EU, but it seems clear that a stay in the UK which could not be regarded as “residence” would not meet the necessary definition for it to be a “qualifying period”. For that reason, it would not give someone a basis on which to apply for status under the EU Settlement Scheme.

What counts as a “period of residence”?

How rigorously the Home Office would apply such an interpretation of the term “residence” in individual cases cannot of course be predicted. I suggest, however, that the shorter and the more temporary a person’s stay in the UK is, the greater the possibility that stay would run the risk of not being regarded as residence.

Take somebody who arrives as a tourist to take part in Edinburgh’s Hogmanay celebrations on 31 December 2020 (if there are any this year, of course), stays in a hotel for a couple of nights, and returns to their EU member state on 2 January 2021. They then do not return to the UK until 29 June 2021 (the deadline for applying). That person might well find that the Home Office does not regard that period as giving them a basis to apply for pre-settled status.

Another case where residence may well not be established is where somebody comes to the UK, at any time before the end of the transition period (not necessarily towards its end), makes arrangements with a friend or acquaintance to sign a tenancy agreement to sublet a room, but then doesn’t actually live there and instead returns to their EU member state for several months. Many other scenarios could no doubt be envisaged.

That does not mean that someone who moves to the UK before the end of the transition period in order to make themselves eligible for status under the EU Settlement Scheme, but at the same time maintains their residence in an EU member state because they haven’t yet made a decision about where they want to reside in the longer term, would necessarily be regarded as not having become resident in the UK from before the end of the transition period. Nor does it mean that someone who does genuinely move to the UK before 11pm on 31 December could not succeed in obtaining pre-settled status (although I do not think moving to the UK so close to the deadline would be a good idea). Each case will have to be considered on its own circumstances. 

Gaming the system has its risks

At the end of the day, the key question will be whether or not a stay in the UK, however short, could genuinely be considered as being residence. The more likely that the period of residence in the UK could be regarded as being artificial, bogus or a sham, the greater the possibility that a person who relied upon it could find their application for status under the EU Settlement Scheme being rejected.

Worse, if such an applicant had concealed the true facts of the situation when applying for status under the Settlement Scheme, and that deceit is discovered at a later date — perhaps many years later — any status which had been granted might then be cancelled.

This article was first published on the Free Movement website on 29 September 2020 at https://www.freemovement.org.uk/applying-for-settled-and-pre-settled-status-requires-genuine-residence/

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Federalism is not enough

(This post was first published on Labour Hame (8 September 2020), at https://labourhame.com/federalism-is-not-enough/)

The Scottish Government has recently made it clear that it will be seeking a mandate at next year’s Scottish Parliament elections to hold a referendum on independence. That is hardly a surprise, but it confirms that the “constitutional question” of Scotland’s future relationship with the UK is likely to be the dominant topic in those elections. Like it or not, that means the Labour Party will also have set out its view on that question in that election.

Some in Scottish Labour would rather that the elections were about “bread and butter issues”  – the economy, the record of the Scottish Government, and Labour’s policies, rather than constitutional issues. Their answer to questions about the constitution is that these are a distraction from the “real issues”. Those with that attitude believe that devolution has gone far enough (some think it has gone too far) and the substantial changes made by the Scotland Act in 2016 following the referendum should be the end of the story.

The problem with that approach is that there is no reason at all to believe that it will be successful. There cannot be many voters who are unaware that the SNP wants independence, and a new independence referendum in the next Parliament, yet still the opinion polls indicate (in increasing numbers), that a large number, now a majority of the electorate, actually find the constitutional issue important.

That’s why many voices in Scottish Labour recognise that the issue of the future Scotland-rest of UK relationship has to be addressed by the party. But most of those have also generally accepted that Labour cannot just stand by the status quo and that it must instead come up with a new approach to the constitution if it is to have any chance of recovering its position in Scotland.

The suggestions for change vary. Most tend to call for “federalism”, but it is obvious that term is used to describe a wide range of options. For some, it means a few more powers for the devolved Parliament and administrations, and some strengthened regional government with England (perhaps directly elected, perhaps appointed by local government). For others, it means federalism in the true sense of the word, which I would consider means directly elected legislatures with accountable government in all nations of the UK, exercising powers which are enshrined in law, but still subject to a UK-wide federal government.

For others, “federalism” for the UK means much more – something which should in fact be better described as “confederalism”, where the UK is transformed into a union of sovereign nations, with constitutional arrangements which recognises that sovereignty remains with those constituent nations, but which agree that certain powers should be exercised by a central authority and legislature for as long as they wish to that to be done. Such an arrangement, of course, is one that the UK has become used to over the last 45 years as it is very much the constitutional basis under which it has participated in the EU. Interestingly, such a confederal – or as I would also call it, a partnership – union seems now to have much stronger support from Welsh Labour than Scottish Labour, even though Wales and Welsh Labour was historically the more “devo-sceptic” of the two. There has, though, also been a consistent strand of support within Scottish Labour for a more radical approach of this nature. It is certainly one which I share.

All these proposals tend to share one feature, however, namely the view that new constitutional arrangements are something that have to be taken forward on a UK wide level. That is also my view, but with an important qualification. I still believe that the interconnections – economic, fiscal, and social–between Scotland and the rest of the UK are so close, complex and interrelated that it would be best for those to maintained in a manner which is closer than would be the case if Scotland and the rest of the UK were separate states. I also think that it requires a giant triumph of optimism over reality to assume that a good relationship with the rest of the UK after independence could be easily worked out and agreed. The experience of the last few years, particularly the Brexit negotiations, does not give one much confidence in the competence and good faith of the British state if it was required to enter into negotiations into such questions; or, of course, that it is even prepared to countenance Scottish independence.

But there is a problem. And that is the brutal fact that the Labour Party has been talking about “UK-wide” constitutional arrangements for a very long time. There are good reasons, of course, why the initial impetus to change slowed down after the establishment of devolution for Scotland and Wales, and the reestablishment of devolved arrangements in Northern Ireland. Not least of these reasons is the fact that there is nothing like a consensus within England whether there should be devolution, whether it should be to be the whole nations or different regions, what their respective powers would be, how they would be financed, or indeed their very boundaries. It is not unfair to say that constitutional reform is not at the top of the UK Labour’s agenda at the moment – hardly surprising, in the midst of the coronavirus crisis and a pending ‘No-deal’ (or at best a minimal deal) for future UK-EU relationships).

For Scottish Labour, however, the clock is ticking towards Scottish Parliament elections in 2021. If, as I believe, it needs to have a clear policy for those elections on future Scotland-UK relations in those elections, then the promise that “at some stage, in the next few years, there may be a Labour government which will set up a Constitutional Convention which, after a few years, may come up with proposals” is hardly a proposition which will excite the voters.

So I suggest that while there does need to be a fundamental reform in the constitutional arrangements across the UK, Scottish and UK Labour also needs, now, to commit itself to changes for Scotland which would truly bring about ‘home rule’ for Scotland, as was promised by Keir Hardie, at Labour’s very beginning, and endorsed by Gordon Brown after the 2014 referendum. What ‘home rule’ means is something on which there is no unanimity either, of course, but if the political will is there, Scottish Labour could agree its policy within the next few months and UK Labour could commit itself to support and push for that policy at UK level. That does not need to wait for cross-party, cross-nation and regional arrangements for the entire UK which would take years or decades come to fruition (although obviously if Welsh Labour wanted to support such a radical extension of devolution, there is no reason why it should not do that). In due course, when and if there is a consensus on UK-wide constitutional change, new arrangements can incorporate a home rule Scotland, but home rule for Scotland should not wait, or be dependent upon that.

As I say, what ‘home rule’ means for Scotland is something for debate. For me it would include as an essential step a reform to the current Scotland Act so that it would no longer be possible for the UK Parliament to legislate outside reserved matters, instead of the present situation where the UK government and Parliament can always, in the last resort, overrule the Scottish Government and Parliament on devolved matters. I will not, in this article today, suggest a particular list of options for the transfer of powers, except to say that there should be an extensive transfer of existing reserved powers to the Scottish Parliament. The basic approach that should be applied is to my mind clear, however. Scottish Labour needs to recommit itself to the fundamental principle agreed across the party, including by every Labour MP except one, when it signed up to the plans of the Scottish Constitutional Convention almost 25 years ago – the principle that everything should be devolved unless there is a good reason for it to be reserved, and that should be the basis for deciding what powers Labour believes should be exercised by a real ‘home rule’ Scottish Parliament.

I can’t promise that if Scottish Labour Party goes into next year’s elections with this approach its political fortunes would be transformed overnight. But bluntly, it could hardly make things any worse. And maybe many voters would be attracted to an option which still has substantial positive support in its own right, but is also an option which would probably be acceptable to many supporters and opponents of independence, even if it was not their preference. That gives the possibility of it being a consensus position with as much substantial support as the Scottish Parliament received in the 1997 referendum, which could provide stability for the long term. At the very least, presenting a policy package combining real home rule for Scotland in its own right, and a longer term commitment to the UK becoming a partnership union, would show that Scottish Labour was prepared to contribute constructively to the debate about the future relationship of Scotland with the rest of the UK, rather than being perceived as the junior partner to the Tories in a hard-line unionist front. Ending up instead in that latter position, and for good measure throw in a bit of kamikaze in-fighting just before the elections, and Scottish Labour might find itself dropping into single figures in the poll percentages next year.

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The extension of the ‘Community Right to Buy’

The Community Right to Buy (‘CRTB’) was first introduced by the Land Reform (Scotland) Act 2003 (the ‘2003 Act’)[1]. It allows a ‘community body’ to register an interest in ‘registerable land’, which gave it a pre-emptive right to buy if the landowner tried to sell the land. The term ‘land’ includes buildings and other structures, land covered with water, and any right or interest in or over land[2]. It should be emphasised that CRTB in its present form does not, with the exception of a special ‘crofting community right to buy’[3],give a ‘community body’ any right to acquire land from a landowner who does not wish to sell, but only to acquire land if the landowner wishes to sell land.

However, when current legislation is fully implemented there will be some circumstances in which community bodies will have the right to acquire land even if the landowner does not agree.   The 2003 Act was a culmination to many years of campaigning by a range of organisations concerned about the pattern and structure of land ownership, particularly in the Highlands, and in rural Scotland more generally. For this reason, it only applied to land outside designated settlements with a population of over 10,000. Effectively, most of urban Scotland was excluded from its scope. However, the Community Empowerment (Scotland) Act 2015 (‘the 2015 Act’) removed that limitation, extending the CRTB throughout Scotland. With some minor exceptions, any land in Scotland is potentially the subject of a CRTB application. The only land which is excluded is ‘land consisting of a separate tenement which is owned separately from the land in respect of which it is exigible’ (although that exclusion does not cover salmon fishings or mineral rights (other than rights to oil, coal, gas, gold or silver)[4].

 

Definition of a ‘community body’

That extension of the geographical scope of the 2003 Act was the principal change to CRTB made by the 2015 Act. It was not the only change, however. Under the original 2003 Act only a company limited by guarantee could qualify as a community body. The 2015 Act extended the definition of community body so that it now also extends to Scottish charitable incorporated organisations (an ‘SCIO’) and a community benefit society[5].

In all cases, the community body also has to meet certain criteria if it is to qualify to make use of the CRTB[6]. These are intended to ensure that the body is a genuine community organisation. They include requirements that it must have not fewer than ten members; that at least three-quarters of the members of the body are members of the community; that members of the body who consist of members of the community have control of the body; and that any surplus funds or assets are to be applied for the benefit of the community[7]. ‘Community’ is defined by reference to a specific geographical area, normally a postcode unit or unit and comprises only the persons resident in that area and entitled to vote, at a local government election, in a polling district which includes that area. The community body may not, therefore, include all members of the local community concerned. Indeed, it is hard to envisage circumstances in which it could except in the case of very small or lightly populated areas. In addition, a body does not qualify as a community body unless the Scottish Ministers have given it written confirmation that they are satisfied that its main purpose is consistent with furthering the achievement of sustainable development.

The application process and the criteria for approval The first step a community body which wishes to make use of the CRTB provisions is to make an application to Scottish Ministers. That has the effect of freezing any transfer of the land (or taking any action ‘with a view to the transfer of the land’) until the application has been disposed of. The Scottish Ministers must decide if the application shall be registered in the Register of Community Interests in Land maintained by the Keeper of the Registers. They have to be satisfied that certain criteria are to be met for an application to be registered[8], namely:

— the proposed acquisition must further the achievement of sustainable development – ‘sustainable development’ is not defined in the relevant legislation;

— a significant number of members of the community body must have a connection with the land and the land is sufficiently near; and

— there must be sufficient level of support within the wider community, as defined above.

The support of 10 per cent of that community is normally sufficient; less than 10 per cent may be if it is in the public interest.

 

The Extension of the ‘Community Right to Buy’

Although an application for registration of a community interest may be made at any time, there are stricter conditions which apply for ‘late applications’. These are principally applications where, at the time that the application was submitted, action has been taken ‘with a view to the transfer of the land’, but missives have not yet been concluded. Where missives have been concluded, or an option to acquire the land has been conferred, the application for registration will be refused. The criteria which are applicable in the case of ‘late applications’ are much stricter than those which normally apply[9]. If the Scottish Ministers accept the application and it is registered, that has a number of effects. Most importantly, for so long as a community interest in land is registered the owner of the land, and any creditor in a standard security having a right to sell the land, is normally prohibited (there are some exceptions) from transferring that land (or any land of which that land forms part); or taking any action with a view to the transfer of that land (or any land of which that land forms part), except in accordance with the relevant legislation. An attempted transfer in breach of the legislative provisions is of no effect. It should be noted that the prohibition is not just on transfer, but also on taking action ‘with a view to transfer of land’. That includes advertisement or otherwise ‘exposing the land for sale’, negotiations, or proceeding further with proposed transfer initiated prior to registration.

 

Making the CRTB effective

As outlined above, the CRTB only gives the community body a ‘pre-emptive’ right to buy. It only comes into practical effect as a right to buy if the owner (or creditor) wants to go ahead with a transfer (which in most cases will be a sale). If the owner or creditor wishes to do that in respect of land in which a community interest is registered, it must intimate that proposed transfer of land to the Scottish Ministers and the relevant community bodies[10]. If the relevant community body wishes to proceed to buy the land, it needs the approval of the community (in a ballot), with a ‘sufficient proportion’ of members of the community voting, by a simple majority, in support of the proposal. There are detailed procedures for the ballot set out in the 2003 Act, including the provision that the expense of a ballot is met by Scottish Ministers[11]. In addition, Scottish Ministers can only consent to that acquisition going ahead if they are satisfied that:

— the community body still satisfies the requirements to be regarded as such;

— the community body’s proposals are still compatible with achieving sustainable development;

— the proposed purchase is in the public interest; and

— there has been no change in circumstances which would have resulted in interest not being registered (if they had applied at the time of registration)[12].

If the proposals receive majority support in the community ballot, and the Scottish Ministers consent, the community body needs to make an offer to buy the land. Its offer must either be at a price agreed between the community body and the owner or, where no such agreement is reached, at a price equal to the value assessed by the appointed valuer or, in the event of an appeal against that valuation, the value determined by that appeal.   Various detailed provisions for the valuation process, including definition of market value, and appeals to the Land Tribunal for Scotland on matters concerning that process are set out in the relevant legislation.

 

Appeals

The 2003 Act provides for an appeal process on certain other matters against the decisions of Scottish Ministers[13]. The owner of the land (or a creditor in standard security with right to sell), or an individual member of the designated community may appeal against a decision by the Scottish Ministers:

— that a community interest in the land is to be entered in the Register; or

— to give consent to the exercise by a community body of its right to buy the land.

A community body may appeal against a decision by the Scottish Ministers:

— that its community interest is not to be entered in the Register; or

— not to give consent to the exercise by a community body of its right to buy the land.

The appeal is made by way of summary application to the sheriff, whose decision is final.

 

Abandoned, neglected, or detrimental land

Although the CRTB does not at present give a community body a compulsory right to acquire land, that situation will soon change. Part 3A of the 2003 Act (which was introduced by the 2015 Act) introduces a specific ‘Community Right to Buy Abandoned, Neglected, or Detrimental Land’ which would allow community bodies to acquire certain types of land. These provisions are due to be fully implemented shortly.

This specific right will apply to land where:

— it is wholly or mainly abandoned or neglected, or

— the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community[14].

In such cases, the Scottish Ministers will be able to allow a community body to acquire the land if they are satisfied on a number of matters, including that:

— it is in the public interest;

— it is compatible with furthering the achievement of sustainable development in relation to the land;

— the achievement of sustainable development in relation to the land would be unlikely to be furthered by the owner of the land continuing to be its owner;

— a significant number of the members of the community to which the application relates have a connection with the land;

— the land is sufficiently near to land with which those members of the community have a connection;

— the community has approved the proposal to exercise the right to buy; and

— the community body has tried but failed to buy the land[15].

The closely defined circumstances in which this new community ‘right to buy abandoned, neglected, or detrimental land’ may mean that it will only be utilised by community bodies in a limited number of cases.

 

The community right to acquire land for sustainable development purposes

This may not be the case, however, with the most recent legislation which aims at promoting community ownership of land. The Land Reform (Scotland) Act 2016 (the ‘2016 Act’) introduces a broader community right to acquire land for the purposes of furthering ‘sustainable development’ even where the landowner does not wish to transfer the land. The Scottish Ministers will be able to consent to a community request if they are satisfied that ‘sustainable development conditions’ are met (along with certain other criteria). The 2016 Act defines these as being met if:

— the transfer of land is likely to further the achievement of sustainable development in relation to the land;

— the transfer of land is in the public interest;

— the transfer of land is likely to result in significant benefit to the ‘relevant community’ (as defined in s 56(11) of the 2016 Act) to which the application relates, and is the only practicable, or the most practicable, way of achieving that significant benefit; and

— not granting consent to the transfer of land is likely to result in harm to that community.

As yet, however, no date has been given for when this new right under the 2016 Act will be brought into effect.

 

Comments

The CRTB legislative framework has come a long way since it was first introduced in the 2003 Act. What has been noticeable about its operation in practice is the relatively few cases where a community interest in acquiring land has required using the full process laid down in the legislation. The register suggests that in many cases a community application has not been proceeded with, and in most cases where a community acquisition has gone ahead, a transfer has ultimately taken place by agreement between the parties. The recent extension of the CRTB to the whole of Scotland also appears to have triggered few applications, although the extent of the interest in the CRTB in urban areas may lead to more coming forward once communities identify specific projects of interest to them. The new provisions allowing compulsory acquisition may also result in more applications coming forward, although the restrictive criteria and complex process required may deter many potential applications.

The most important effect of the 2003, 2015 and 2016 Acts, when fully implemented, may not be in how much they are actually used to the full extent, but in how they might change the tone of negotiations between communities and landowners. The simple existence of the legislation may well encourage landowners to come to agreements with community bodies, with the former knowing that the latter might be able to use the legislation if an agreement is not reached.

Mark Lazarowicz Advocate, Terra Firma Chambers, Edinburgh

(This article was first published in the June 2018 edition of “Scottish Planning & Environmental Law”, at (2018) 187 SPEL 58. Acknowledgments and thanks to IDOX Group for allowing it to be reproduced).

[1] Subsequent references in this article to the 2003 Act are to its currently amended form.

[2] As a result of the provisions of Sched 1 to the Interpretation and Legislative Reform (Scotland) Act 2010.

[3] See 2003 Act, Part 3.

[4] See 2003 Act, s 33.

[5] The Scottish Ministers can also add other categories of body, and make exceptions and amendments in certain specified cases.

[6] Section 34 of the 2003 Act sets out the detailed criteria which organisations have to meet if they wish to qualify as community bodies under the 2003 Act.

[7] There are minor differences between the provisions applying to the different categories of community body, but in broad terms the rules are similar.

[8] See 2003 Act, s 38.

[9] See 2003 Act, s 39. Most of the limited case law on the 2003 Act is concerned with Ministerial refusal to allow late applications. See Holmehill Ltd v The Scottish Ministers, 2006 SLT (Sh Ct) 79 and Coastal Regeneration Alliance Ltd v Scottish Ministers [2016] SC EDIN 60.

[10] See 2003 Act, s 48.

[11] See 2003 Act, s 51 for the details of the provisions regarding ballots.

[12] See 2003 Act, s 51(3).

[13] See 2003 Act, s 61.

[14] See 2003 Act, s 97C.

[15] See 2003 Act, s 97H

 

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Now out! New book on the Scottish Parliament

 

Along with Jean McFadden, I have written a new book on the Scottish Parliament: The Scottish Parliament: Law and Practice (Mark Lazarowicz and Jean McFadden).

It is published by Edinburgh University Press, (£40 Paperback) 296pp.

You can order copies here: https://edinburghuniversitypress.com/book-the-scottish-parliament.html

I’m pleased to say we’ve had some good reviews for the book. Here are some extracts:

 

“The authors of this book are both lawyers with a wealth of political experience, and this combination makes them well placed to consider both the internal working of the Scottish Parliament and the constitutional context within which it operates.

The book is clearly written and informative. It will be very useful to students and legal practitioners needing an accessible source of reference to the work and workings of the Scottish Parliament”.

Robert Sutherland (Advocate)

 

“Thoroughly recommend this updated book on the Scottish Parliament by Mark Lazarowicz and Jean McFadden”

Malcolm Chisholm (former MSP and Scottish Cabinet member)

 

“This latest edition of this valuable book is both timely and fully updated. The text clearly and authoritatively considers the history of the Scottish Parliament, its powers, how it may use those powers, the structure of parliamentary committees, the Scottish Government and how Acts of the Parliament may be challenged. This is a useful book setting out the constitutional position of the Scottish Parliament, its powers and limitations on those powers. It should be of general interest to all practitioners.”

David J Dickson (Solicitor advocate: reviews editor, Journal of the Law Society of Scotland)

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Picardy Place decision has wider implications

This is my response to Edinburgh City Council’s consultation on the redevelopment of Picardy Place. It is a local issue, but with wider implications:

Consultation on Picardy Place – with comments also on Leith Street proposals

I am writing in response to the Council’s revised proposals for Picardy Place. I also express my views on the future options for Leith Street, which are of course closely linked with the eventual layout that is adopted for Picardy Place and the redevelopment of the entire former St James Centre area. I also take this opportunity to make some comments on the wider policy and planning questions which arise as a result.

Picardy Place

The Council’s revised proposals for Picardy Place are a minor improvement on the original proposals. They remain, however, fundamentally flawed. The retention of a “gyratory” system, means that the opportunity to use the redevelopment of Picardy Place to transform that area into one which puts people and community first, and at the same time forms a fitting gateway into the city, will be lost.

The new proposals will lead to a loss in the space currently used as “public realm” east of St Mary’s RC Cathedral, and will create what will in effect be a giant “traffic island” surrounded by traffic on three sides which is likely to be unusable for public realm, because of difficulties of access across busy streets and also because of the poor air quality likely to result from being surrounded by traffic. The new proposals will also make it less convenient for pedestrians to cross, and offer no improvements to cycle routes across the site.

Instead, any revised scheme should extend the current “public realm” area, and make better use of that area. It should ensure that both pedestrians should be able to cross both York Place and Broughton Street in a direct manner. It should also provide segregated cycle routes to allow direct access up from York Place towards Leith Street, and from York Place towards Leith Walk. There are various options which have been suggested as delivering such a result, including that proposed by Sustrans.

Leith Street

The Council is also considering proposals for pedestrian and traffic layout at the southern end of Leith Street, into which much of the traffic from a redesigned Picardy Place will inevitably flow. The current proposals will remove bus lanes from that section of street, which will of course have an impact on public transport reliability, and also impact upon cyclists who are able to use those lanes.

The current temporary closure of that section of Leith Street has kept a pedestrian route open, however, and also provide a dedicated cycle route. It has also had the effect of substantially reducing traffic congestion at the east end of Princes Street.

Given that the Council’s proposals for Leith Street traffic will have a negative effect on both public transport and cyclists, it is not surprising that there have been calls for the current temporary removal of other traffic from that section of street to be made permanent, allowing only buses and cyclists (and of course pedestrians) to use it.

The difficulty with that proposal, however, is that the temporary closure has resulted in extensive traffic diversion, in particular in the Abbeyhill area. This has understandably been a matter of major concern to residents in that area, whose amenity, and for many residents quite probably their health, has been harmed by the extra traffic in that area.

Unless and until there is a substantial reduction in north-south traffic area in the wider area (which I discuss below), it does not appear to me that a full closure of Leith Street to general traffic could be introduced without unacceptable consequences for residents in other areas.

That does not mean, however, that measures could not be taken to ensure that buses and cyclists are given priority over general traffic at the southern end of Leith Street. Possible measures could be to provide at least a one-way southbound segregated cycle lane. A traffic light system at the Calton Road/Leith Street system could also be introduced to give buses and cyclists travelling southward priority over general traffic entering the southern section of Leith Street.

The wider picture

The fact that there are no “easy options” for both Picardy Place and Leith Street emphasises the wider policy and planning failure that there has been in the redevelopment of the whole east end area around the former St James Centre. It has become clear that a major factor pushing the Council towards a “gyratory” arrangement for Picardy Place is the agreement that it has entered into with the developers of the St James Centre site, the Scottish Government, and the latter’s Scottish Futures Trust. That agreement has included, amongst other things, a substantial increase in car parking at the site which will inevitably mean more traffic, which is why “traffic flow” issues (e.g. more cars) are limiting the Council’s options for Picardy Place. Furthermore, if the redevelopment of the St James Centre had allowed for (i) Leith Street to be wide enough to allow bus lanes to be retained, as well as wider pavements; and (ii) segregated cycle routes either at the side of Leith Street or through the redeveloped site, then the “bottle neck” at the top of Leith Street would not have been created.

That these problems have arisen seems to have been the result of decisions by all the public sector parties involved in the redevelopment of the area which had the effect of giving development and “improved traffic flow”) a higher priority over sustainable transport objectives (eg better provision for public transport and cyclists), pedestrians, and the local community. Given the stated policies of both the Scottish and local governments, this prioritisation of development and cars should not have taken place. Both need to conduct a fundamental examination of how they reached their decisions for the development of this area, with a view to ensuring that similar mistakes are not made in the future in other parts of Edinburgh.

As for the current proposals for the east end area, the public authorities need to re-examine the overall plans for the redevelopment to see if there can be some redesign to reduce extra traffic, to retain public transport priority, and to provide better routes alongside and through the development for pedestrians and cyclists.

The Council also needs to introduce measures to reduce north-south traffic across the city centre of Edinburgh. This requires an integrated traffic strategy for the area, but one measure which could be introduced relatively simply would be to extend the existing residents’ parking scheme northwards so as to cover the Leith area. This would be likely to encourage a shift from cars to public transport (and also cycling and walking) for those travelling to work in the Leith area, and would have the incidental effect of raising funds for investment in transport infrastructure. If experience elsewhere in Edinburgh is anything to go by, such an extension would also be welcomed by the majority of local residents in the area who would no longer find local streets used increasingly as free commuter car parks. Such an extension would not be the complete answer, but it could certainly be part of the solution.

 

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Devolution after Brexit: ‘Power Grab’ or a ‘Significant Increase in Decision-making Power’

One of the questions that arose very soon after the EU referendum was what would happen to the powers currently exercised by the EU over areas of government activity which would otherwise be devolved. The initial assumption in many quarters was that such powers would automatically be devolved to the Scottish parliament and other devolved legislatures. Indeed, even during the referendum campaign itself, some prominent Scottish ‘Leave’ campaigners made the argument that the UK leaving the EU would make the Scottish parliament much more powerful precisely because it would acquire such powers in that eventuality.

However, some suggested that such assumptions might be premature. I argued in a blog piece I wrote in February 2017 that there could be no assumption that such an extensive transfer of powers would necessarily take place. In March 2017, former PM Gordon Brown went so far as to warn that ‘unless powers now with the European Union are repatriated from Brussels to the Scottish parliament, the Welsh assembly and the regions, Whitehall will have perpetrated one of the biggest power grabs by further centralising power’.
The UK government’s Brexit devolution approach
Those words of caution were shown to have some validity when the UK government set out its proposed approach to the transfer of EU competences to the devolved legislatures and administrations in its white paper on ‘Legislating for the United Kingdom’s withdrawal from the European Union’ published at the end of March[i]. It emphasised there that ‘at EU level, the UK government represents the whole of the UK’s interests in the process for setting…common frameworks’, and that ‘when the UK leaves the EU, the powers which the EU currently exercises in relation to the common frameworks will return to the UK’. Only afterwards might there be further transfers of former EU competences to devolved administrations, after determining ‘the level [of government] best placed to take decisions on these issues.’

The First Ministers of Scotland and Wales both expressed their concerns at the approach set out in that white paper, and more recently issued a joint statement describing the measures in the EU (Withdrawal) Bill on devolved powers as representing a ‘naked power grab’. The Scottish and Welsh governments have now suggested a number of specific amendments to that bill which aim to ensure that EU competences relating to devolved matters are not retained by the UK parliament after Brexit.

The reason such issues have arisen is a consequence of the nature of the devolution settlement in Scotland (as for the other devolved administrations). The general principle adopted in that settlement, set out in the 1997 white paper ‘Scotland’s Parliament’[ii] is that ‘what is not specifically reserved is devolved’. Therefore, powers not specifically retained at Westminster fall under the authority of the Scottish parliament and ministers. However, from the start, an important qualification to that general rule was that the Scottish parliament and ministers have to comply with EU law in terms of passing legislation and day to day administration. On the basis that they would no longer be required to do so after Brexit, it might appear that all these EU competences should automatically be devolved at that point as they had not been specifically reserved by the 1998 Scotland Act.

The problem, of course, is that when the devolution settlement was constructed it assumed continued EU membership by the entire UK. It is therefore not unreasonable to argue that as it was never envisaged that the powers which fell within the authority of the EU at time of the 1998 Scotland Act would at some stage fall within the powers of the Scottish parliament and government, there should be no automatic transfer of those EU competences to the devolved institutions.
If there were to be such a transfer, it is argued, there would be a real danger of damaging policy divergence, and lack of coordination, between the different nations of the UK in important areas of former EU competence. In the words of the UK government white paper, ‘it will be important to ensure that stability and certainty [after Brexit] is not compromised, and that the effective functioning of the UK single market is maintained’.[iii]

Sequencing of repatriated powers
One solution to the problem might be found in the approach which both the Scottish and Welsh governments have indicated would be their preference. The principle of ‘what is not reserved is devolved’ would apply to all current EU competences, and then the administrations would agree (presumably before the date of Brexit) with the UK government which of these powers should then be exercised either by the UK government on its own, or jointly with the devolved administrations.

However, such arrangements would clearly put the devolved administrations in the driving seat in deciding the long-term allocation of former EU competences relating to devolved matters between the UK and the devolved nations, as those powers could only be allocated and exercised centrally with the consent of the devolved nations. The UK government has so far rejected such an arrangement, no doubt because of a fear that the devolved administrations might indeed prevent a UK-wide approach being adopted in significant areas of former EU competence.

Instead, as described above, the UK government’s intention is that the powers over ‘common policy frameworks’ currently set by the EU will return to the UK in the first instance. Only thereafter will there be ‘intensive discussions with the devolved administrations’ to determine where such powers will not need to be retained at UK level in the future[iv].

The current European Union (Withdrawal) Bill aims to put that approach into effect. It provides that current powers exercised by the EU will not fall within the competence of the Scottish parliament and government, and it will therefore be up to the UK parliament and government to exercise those powers after Brexit. Thereafter, the UK government can transfer, by Order in Council, powers previously exercised by the EU to devolved legislatures in such a manner and at such time as it seems fit. Such transfers will require the approval of both Houses of Parliament, and of the Scottish parliament itself.

Under the EU (Withdrawal) Bill, ministers in the devolved administrations will also be given limited powers to ‘correct deficiencies’ in their own legislation which arise from withdrawal from the EU, to remedy potential breaches of international obligations, and to implement the eventual withdrawal agreement. These are ‘Henry VIII’ powers, in that they can make ‘any provision that could be made by an Act of Parliament’.[v] However, those powers are restricted to matters that are within the devolved competence of the relevant ministers. Furthermore, devolved ministers will not have the power to modify ‘retained direct EU legislation,[vi] unlike their UK counterparts. They are also specifically prohibited from making regulations (except with the consent of a UK minister) about any quota arrangements.[vii]

Obstacles to Brexit devolution to Scotland
As the EU (Withdrawal) Bill allows transfer of EU competences to devolved administrations to be undertaken by means of an Order of Council (subject to UK and the devolved legislature) it is undoubtedly the case that such transfers could be made speedily, as they would not require the lengthy parliamentary process necessary for the passage of an Act of Parliament. But from the perspective of the devolved administrations it should be noted that a major drawback is such ‘release’ of current EU competences from the authority of UK ministers into devolved competence requires a positive initiative by the UK government to take the steps necessary to transfer that competence.

If the UK government chooses not to, or if the UK parliament refuses to approve the necessary legislation, then the power concerned will not be devolved. This must increase the opportunity for anyone who is opposed to that transfer, be it within the government or elsewhere, to seek to obstruct its transfer. That might take the form of a positive decision by the UK government not to transfer that power, as a result of a specific political choice being made. But it might also take the form of delaying tactics within the government or by groups of MPs opposed to the particular transfer proposed; or it might just result from the immense legislative burden which will fall on the UK government and parliament in order to deal with the consequences of Brexit.

There will be a legislative and legal log-jam both before and after the date of Brexit: considering proposals for, consulting upon, drafting, and thereafter making legislation on the incorporation of EU law into domestic UK legislation. Taking steps to transfer areas of EU competence to devolved institutions may not be the top of the UK government’s list of priorities.

That being so, there must indeed be a risk of a ‘power grab’, as much by default and inertia as by design. And the longer that returned EU competences remain untransferred to devolved institutions, the more likely will be the possibility that the political case will have to be made again on each time that a transfer of power over an area of EU competence is proposed to be made to a devolved institution. The dynamics of decision-making on the allocation of former EU competences to devolved nations will be in a very different position where it is those nations that have to make a case to the UK government for transfer of power from one where it is the UK government has to convince devolved administrations both of the need for a competence to be retained, and of the mechanism by which such a competence will be exercised and controlled at central level.

Proposals to give Scotland a greater role
The only certain way of preventing the claimed ‘power grab’ is by adopting the principle that EU competences are not added to the powers currently reserved to the UK parliament, so that they then transfer directly to the devolved administrations. The amendments proposed by the Scottish and Welsh governments to the EU (Withdrawal) Bill would have that effect. However, if the UK government rejects such proposals, as seems likely, there are other, if less far-reaching, steps that could be taken to give the Scottish parliament (and the other devolved administrations) a much stronger voice and role in the process which has now been commenced with the passage of the EU (Withdrawal) Bill through parliament.

These are measures which I suggest could be put in place to give the Scottish parliament and government that greater voice and role:

It could be specified that the powers which the bill gives to UK ministers to modify ‘retained EU law’ can be only exercised, when they concern devolved competence, if the Scottish ministers give their consent. (Amendments of this nature have been proposed by the Scottish and Welsh governments).

It could be specified in the EU (Withdrawal) Bill that certain powers over ‘retained EU law’ will be devolved by the bill itself, rather than waiting for them to be subsequently ‘released’ from reserved competence by ministerial decision and secondary legislation. For example, certain environmental powers which currently rest with the EU could be transferred to devolved competence now. The Scottish and Welsh governments have identified many other areas where such transfers could be made.

The Scottish Parliament could be given the power in the EU (Withdrawal Bill) to legislate on retained EU law where it would have otherwise been transferred to the Scottish Parliament automatically, but with the qualification that any item of such legislation by the Scottish parliament could be vetoed by the UK government if it considered that it was inconsistent with its UK-wide approach to powers which were being returned from the EU.

A ‘reverse sunset clause’ could be put into the EU (Withdrawal Bill). The bill currently includes ‘sunset clause’ provisions to limit the powers of ministers to make changes through secondary legislation, so that they expire after two years after the UK’s final exit from the EU. At that stage, unless those powers are extended, or replaced by similar mechanisms, it will therefore only be the UK parliament that can make further decisions about repeal or amendment of retained EU law.

Although UK ministers would presumably have the power, under section 30 of the Scotland Act 1998, to devolve further powers over ‘retained EU law’ to the Scottish parliament, this would still give the UK government and parliament the final say over whether any such powers should be transferred. Instead, the EU (Withdrawal) Bill could provide that, at the end of the two years, powers over ‘retained EU law’ would automatically be ‘released’ to the devolved administrations, unless the UK parliament specifically legislated for such competences to continue to be reserved. This would place a heavy onus on the UK government to make a positive decision about which, if any, EU competences should continue to remain within the competence of the UK parliament after the sunset clauses expired.

Avoiding the Brexit ‘power grab’
No doubt other mechanisms could be proposed as to how to ensure the Scottish parliament and government can be given a greater role in the process of transferring EU law to the UK after Brexit. Some of the measures I have proposed above could perhaps be combined, or their extent limited, if it was considered that their effect would be too far reaching to be compatible with the wish to maintain that the UK’s own internal ‘common market’.

However, if some such mechanisms as those outlined above are not put in place, it seems quite possible that the Scottish parliament and other devolved legislatures will find that the increased range of powers that they might have expected to exercise after Brexit will not be transferred to them for some considerable time to come, notwithstanding the UK government’s stated expectation[viii] that ‘the outcome of the process will be a significant increase in the decision making power of each devolved administration.’

That possibility of what has been described as a ‘power grab’ would exist even if there was political goodwill on all sides, given the procedural complexity of, and the inevitable bureaucratic delays that will emerge from, the arrangements currently proposed in the EU (Withdrawal) Bill. In the not unlikely absence of political goodwill on all sides, it is reasonable to surmise that the Scottish parliament might find it has to wait much longer for such transfers of power to be put into effect unless its role in the EU withdrawal process is considerably enhanced.
[i] Legislating for the United Kingdom’s Withdrawal from the European Union, Cm 9446, March 2017, chapter 4.
[ii] Cm 3658, chapter 2.4.
[iii] Cm 9446, chapter 4.3
[iv] Ibid., chapter 4.4
[v] See Sch 2
[vi] Sch 2, clause 15 (1)
[vii] Sch 2, clause 16 (1) (c)
[viii] Chap 4.5

This article was first published on the website of the Scottish Council on European Relations, 20 September 2017

 

 

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Time to make the most of trams

It looks like the long-awaited Edinburgh tram extension is finally about to happen. The case for the extension is stronger than ever. Edinburgh’s expected population growth over the next few decades means that the city must develop a modern public transport network. Trams are an ideal type of transport for areas with a high population density, like Leith. There’s also potential for future development of the network into the areas surrounding the city.
Of course, lessons must be learned from the delays and massive cost overruns in the original tram project. Hopefully the ongoing tram inquiry will provide some ideas to make sure mistakes aren’t repeated. And the city needs to make sure that any extension makes proper arrangements for the safety of all those travelling in or around the tram tracks, particularly cyclists.
The construction of the tram network must also not be allowed to undermine local businesses. This is particularly important in and around Leith Walk, where many businesses were badly affected by the previous disruption. I’ve seen reports that help might be provided for around 300 businesses along Leith Walk. However, I know that there were also businesses in neighbouring streets that were also severely hit by disruption, but weren’t eligible to receive any help to make up for loss of business. There should be a generous programme of grants and interest-free loans for all the affected businesses in the area.
Even the limited extension of the tram route will make more journeys possible, and is projected to increase passenger numbers substantially. But the full potential of the trams will not be tapped until they run on a real network, rather than just on one relatively short route. So, it is important to complete the full tram network originally planned. That includes the completion of the circle to provide tram links for much of north Edinburgh. The opening of the new Queensferry Crossing is a reminder that the Scottish Government once floated the idea of using the space freed up on the original Forth road bridge to extend the airport tram route to serve the growing communities of south-west Fife. The extension to Newbridge should go ahead. Links to the Edinburgh Royal Infirmary area need to be re-examined, possibly along different routes from the original one proposed, and should include services into Midlothian and East Lothian.
Many other routes could no doubt be suggested. What is vital is that our local and central governments must think and plan for the public transport needs of the whole of south-east Scotland for future decades, not just the short term. And an extended tram network could play a big part in making that happen.

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Let’s make Edinburgh’s transport more visitor-friendly

I was sitting on an Edinburgh bus the other day, and a scene developed which will be all too familiar to regular users of our city’s normally excellent public transport. A family, obviously tourists, got on the bus and tried to buy tickets. They clearly did not have a good command of English, and had difficulty understanding the need to have ‘exact fare only’. Eventually, after a few minutes, the bus driver asked them to leave the bus, with the tourist group still not really understanding the ticketing system.
That made me wonder about the ease, or otherwise, with which our city’s buses and trams provide information for travellers – tourists or otherwise – in any language other than English. And the answer, is not a lot. A handful have information in other languages at bus stops. There is nothing on the buses or trams themselves. The bus and tram websites are in English only, as is the app. And even though the trams and many buses now have display monitors, their contents are all in English too.
Contrast this with what you can find in many other European cities. You can find multilingual information at bus stops. Websites and journey planners in numerous languages. Automatic ticket machines which work in a number of different languages. Display screens on trams and buses which give travel information in at least one other foreign language.
And what both visitors and residents might also appreciate would be an end to the ‘£10 ticket rip off’ on the city’s tram system. That is the way in which customers who don’t realise they have to, or know how, to buy a tram ticket before getting on, are hit with a £10 flat charge. I’ve lost count of the number of times I have been on trams to see passengers, normally visitors to our city, end up having to pay this charge, or having to get off to buy tickets from the machine.
Would it not be sensible to at least improve the chances of foreign visitors understanding the system if there was multi-lingual ticket information available at tram stops? Visitors, and passengers from Edinburgh as well, would also have more options available to them if they could actually buy tickets on board trams. If some reason they can’t be sold by the on board staff, perhaps at a slightly higher fare, then why couldn’t Edinburgh trams adopt the system you see in many other European tram systems, with automatic ticket machines actually on board the trams.
Some may say that as most visitors to our city probably understand at least some English, there’s no need to put in such facilities. I disagree. I want visitors to our city to enjoy their experience as much as they can. Many readers will know how frustrating it can be if we are in a foreign country and the public transport system isn’t easy for visitors to understand.
And, at the end of the day, as well as improving the experience of visitors to our city, it would also make life on buses and trams a little bit more convenient for us residents as well. The less time bus drivers have to explain to foreign visitors how the ticket system works, the quicker our journeys will be – and a little less stress will be placed on our hard-working bus and tram staff!

(This article was first published in the Edinburgh ‘Evening News’)

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