Meeting of the Parliament 09 January 2014
The City of Edinburgh Council (Portobello Park) Bill will change the law in order to allow the City of Edinburgh Council to appropriate Portobello park to build a school. The Parliament is being asked to approve that straightforward principle today—nothing more, nothing less. It is important that we do not lose sight of the fact that the public realise what the bill is really about. I do not think that it is about the need for a new school, which we all agree on.
A number of us have received correspondence from residents who are concerned about the bill. The question of the competency of the private bill was raised: specifically, correspondence cited the guidance on private bills, which requires that such bills should not be considered if a statutory remedy is not necessary or if a change to the general public law would be more appropriate.
In the context of the former point, some people have raised the alternative sites that are open to the city council for a new school. However, I do not think that it is appropriate for the Parliament to visit that matter in depth, particularly as the council voted unanimously to pursue the Portobello park option via the private bill route. We must accept that Portobello park is the best option for the school.
The second objection to the bill’s competency was made in relation to whether other legal solutions were more appropriate. From the evidence that was presented to the committee, I note that there is broad agreement that such options are non-starters and that a statutory solution such as the bill is the only way forward.
However, within that broad agreement, there was a contention that a change to the law on appropriation of common good land should be made through a public bill. I share the committee’s view that, given the particular set of circumstances surrounding the new Portobello high school, it is both necessary and acceptable to pursue the private bill option.
Beyond those technical objections, a key concern has been raised by a number of people—namely, the wider implications of the bill as regards common good land. We need to take those concerns seriously, and it is in the best interests of all concerned—including those of us who support the bill—that we demonstrate that no such danger exists, due to the specific area of law that the bill addresses. We must be clear about precisely which area of law the bill relates to. It is not about the broad issue of safeguards for common good land, so we should leave that aside. The bill is about the land at Portobello park and that land alone.
The bill concerns the principle of appropriation of inalienable common good land. Indeed, more specifically still, the bill is about the appropriation of such land for the city council’s education authority functions. There are a number of reasons why I do not expect more local authorities to introduce other private bills on the back of this one, although that is what everybody is afraid of. Of course, one key point is that private bills are not commonplace or straightforward in any case, especially when we consider the constraints on parliamentary time. Beyond that point, the appropriation of inalienable common good land for the purposes of education is such a narrow issue that it is not likely to affect many other cases for the time being.
The question whether such cases may be more common in the future, given school building programmes, has been raised in evidence. In that context, I agree with the committee’s conclusion that the bill is so narrowly focused on the issue of a school on Portobello park that it is difficult to see how it could lead to a broader presumption in favour of appropriation. Indeed, I think that the broader effect of the bill—if there is any at all—will be that the issues around appropriation will be properly debated and discussed and a mechanism for adjudicating similar disputes will be adopted for the future, which is no bad thing.
In effect, we are discussing a legal anomaly. Local authorities cannot appropriate inalienable common good land but they can dispose of it with court permission. It became an issue following local government reorganisation in 1996. Prior to that, district councils could dispose of inalienable common good land to regional councils, as they were the education authorities. Indeed, such an example was cited in Wishaw, within the old Strathclyde Regional Council.
However, following local authority reorganisation, that was no longer an option. Therefore, we have arrived at a position where a local authority can dispose of, sell off and develop inalienable common good land with court permission, but it cannot use the land to provide much-needed and long-overdue school premises, as it has no power, and there is no legal process of adjudication, should it wish to do so. It seems, on a point of principle, unfair to allow such an anomaly to stand in the way of a new school that we know is much needed.
As we have heard, and as the committee found, the private bill route is the best option for resolving the very specific set of circumstances in Portobello. The bill gives the City of Edinburgh Council a mechanism to appropriate Portobello park, as the case highlights that there is no existing means for it legally to do so. Because of the obvious need for a school and because we can satisfy ourselves that, realistically, there is little danger of setting a wider precedent due to the focus on Portobello park and the very particular circumstances surrounding it, we have no good reason to oppose the bill. Indeed, given the desperate need for a new school, we support it.
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