Hansard

As the convener of the City of Edinburgh Council (Portobello Park) Bill Committee, I am pleased to open the preliminary stage debate. I thank my committee colleagues for their support and assistance throughout the process. My colleague James Dornan is not with us this afternoon, but my thoughts are with him.

This is my first time as the convener of a parliamentary committee. I welcome the challenge, but I could not have met it without my colleagues’ support. I thank the committee clerks and the Parliament’s legal team for the advice that they have given me and other committee members and for the time that they have given to all aspects of the bill. I thank all who have assisted the committee in scrutinising the bill at preliminary stage, including the experts on common good law who provided evidence to the committee and the objectors, who have engaged in the process and assisted the committee in understanding the issues and concerns that the proposals raise.

The bill is short, extending to only five sections, but it is nonetheless controversial. The action that it would facilitate—the building of a new high school in Portobello park—is not without its critics. The bill presents complex legal issues, which the committee was keen to understand in depth before considering the merits of and arguments against the proposal.

The issue of a much-needed new high school for Portobello has a long history. The consensus appears to be that a new school is needed. Locating the school in Portobello park seems to be the key issue.

Portobello park forms part of an area of land that was purchased by—not gifted to, as the committee’s report, which has now been corrected, originally inaccurately stated—the City of Edinburgh Council’s predecessor body from Sir James Miller in 1898. The purchase provided that the land was to

“be used exclusively as a public park and recreation ground”

for the community’s benefit and contained a condition against building on the park, other than building consistent with the land’s use as a public park or recreation ground.

The park’s selection as the site for the school dates back to 2006, when the council agreed that it was the preferred location. Planning permission was granted in February 2011 and the intention was to appropriate the park for the new school. However, that was challenged in a judicial review petition in the Court of Session by the Portobello park action group. In September 2012, the inner house upheld the petitioners’ appeal, on the basis that existing law on the disposal of common good land does not extend to the appropriation of inalienable common good land. That meant that the council could not move the site from its recreation function to its education function and therefore could not build the school on the park.

The bill was introduced in April last year by the promoter—the City of Edinburgh Council. Its purpose is to remove the legal obstacle that the inner house identified in order to allow the council to use Portobello park as the site of the new Portobello high school. The bill would change the legal status of Portobello park from inalienable to alienable common good land for the purpose of part VI of the Local Government (Scotland) Act 1973. That would allow the council to appropriate the land for its education function and build the school on the park. The bill does not authorise the building of the school, which is subject to the local authority planning process.

Following its introduction, the bill was the subject of a six-week objection period, during which 66 admissible objections were received. At preliminary stage, the committee had to reject any objection to the bill that did not, in the committee’s opinion, demonstrate that the objector’s interests would be clearly adversely affected. In that context, and after considering each objection carefully, we agreed that seven of the objections did not pass the test and consequently rejected them. If the Parliament agrees to the bill’s general principles and that the bill should proceed as a private bill, the committee will look at the remaining 59 objections in more detail at consideration stage.

In considering the bill’s general principles, the committee was sensitive to a number of recurring themes that objectors raised in relation to perceived key implications of the bill if it is enacted. In particular, the committee considered claims that the bill would set a precedent for councils to overturn the general protections that are afforded to inalienable common good land by using the mechanism of a private bill.

Although we recognised that it would be open to other councils to follow that route if they so chose, any other such bills would have to be considered in their own circumstances and on their own merits. The bill makes specific application of the law only in specific circumstances and does not in itself change the general area of the law. We were therefore satisfied that the precedent argument was not sufficient for the bill not to continue to its next stage.

We carefully considered the evidence that was provided on the key issue at the core of the bill: the apparent legal anomaly that exists in the Local Government (Scotland) Act 1973, which allows a council, with the consent of a court, to dispose of inalienable common good land to a third party, but does not allow a council to use such land for a different purpose by appropriating it for another of its functions.

One of the alternative legal approaches that the promoter considered, which some objectors highlighted as the mechanism that should be pursued, was a change in the general law to address that apparent legal anomaly. It was argued that a public bill would not only address the legal anomaly that was highlighted in this case, but have general application throughout Scotland.

To ascertain whether there were any plans for a public bill or other Scottish Government action in relation to the matter, the committee contacted the Scottish Government. We were advised by the Minister for Local Government and Planning that the Government had not reached any decision on the matter, although it was consulting on its forthcoming community empowerment bill, which is intended to include provisions on the management and disposal of common good land. The committee noted that any potential Scottish Government legislation in connection with the issue was likely to be some time off.

Although the committee is aware that this is not part of its specific role, we agreed that we would draw the attention of the Parliament and the Scottish Government to the suggestion that a change in the general law might be appropriate, regardless of the outcome of consideration of the bill.

The committee also examined the other alternative legal approaches that the promoter had considered as options to achieve the same end. Those included appealing the inner house’s decision to the Supreme Court; reviewing the status of the park to establish whether it might be categorised as alienable common good land or not part of the common good; disposing of the park under section 75(2) of the 1973 act; applying to the court seeking authority to appropriate the park under section 75(2) of the 1973 act; and petitioning the Court of Session under the nobile officium, which, in essence, provides a legal remedy where one is otherwise unavailable.

The promoter argued that none of the other alternatives would be as quick or as cost effective as promoting a private bill. The committee is satisfied that the promoter was justified in pursuing the private bill process as opposed to other possible legal options at this juncture.

There was some dispute between the promoter and some objectors on what effect the bill would have on the longer-term status of the park. The promoter argued that its inalienable status would be removed only for as long as it was appropriated for an education purpose, but others argued otherwise in evidence. The committee is persuaded that, should the bill continue to consideration stage, an amendment should be lodged that would provide safeguards for any future use to protect the park’s inalienable common good status should it no longer be used for an educational purpose.

As well as considering the general principles of the bill, private bill committees must take a view on whether the bill should proceed as a private bill. To that end, the committee had to satisfy itself that the bill conformed with standing order requirements in relation to the definition of a private bill and that the accompanying documents were adequate to allow proper scrutiny of the bill.

On the first point, the committee was satisfied that the bill complies with the standing order definition of a private bill. We were also satisfied that the bill confers on the promoter powers in excess of the general law—in this case, the 1973 act.

On the second point, the committee was required to consider each of the accompanying documents—the promoter’s memorandum, the explanatory notes and the promoter’s statement, which were lodged by the promoter—and take a view on whether those documents were fit for purpose. We considered, for example, whether the explanatory notes summarised what each provision of the bill does and provided other information to explain the effect of the bill, and whether the promoter’s statement detailed the arrangements that were made by the promoter regarding matters such as notification, advertising and distribution of the bill and accompanying documents.

The committee was of the view that, overall, the accompanying documents were adequate to allow for scrutiny of the bill.

Overall, we have carefully considered the arguments for and against the bill and, on balance, we are persuaded by the general principles of the bill. If the Parliament agrees, we will examine the objections in greater detail at consideration stage.

I move,

That the Parliament agrees to the general principles of the City of Edinburgh Council (Portobello Park) Bill and that the bill should proceed as a private bill.