(50)  Abolition of the Feudal System

After 1,000 years of life, the end of the feudal system of land tenure in Scotland appears to be nigh. On 11 February 1999 the Scottish Law Commission published its Report on the (Scot Law Com No 168). The Report proposes the abolition of feudal tenure, with the dominium utile in any land held on such tenure being converted into ownership and all superiorities ceasing to exist (but this not to affect the prerogative powers of the Crown). Ownership of land will continue to be transferred on registration. All remaining feuduties will be extinguished, subject to payment of compensation. Blench duties, ground annuals, skat, teinds, stipends, standard charges, and dry multures will also go. Superiors will lose not only their hypothecs but also the right to enforce real burdens; but: (1) where the burden is in favour of a nearby (within 100 metres) building, or is a right to enter, or a right of pre-emption or redemption, or concerns minerals , salmon fishings or other incorporeal property, a notice for its continuation may be registered; (2) burdens affecting the sea bed or foreshore and enforceable by the Crown (to be known as maritime burdens) will continue to be so enforceable: and (3) real burdens enforceable as superior by a conservation body and having the purpose of preserving or protecting for the public benefit the architectural, historical or other special interest of the servient tenement or any buildings thereon will be enforceable if the conservation body registers the burden as a conservation burden. There is a scheme of compensation payable for the loss of development value real burdens, but triggered only if an act or event takes place which would have been a breach of the real burden if it had not been extinguished. Amongst other points of interest, the Report recommends that the dignity of baron should no longer be attached to land, and should be transferable only as incorporeal heritable property. Any surviving criminal or civil jurisdiction of barony courts should be abolished, along with any conveyancing privileges incidental to barony titles to land. Also for the anti-feudal chop are burgage tenure, booking tenure in Paisley, the kindly tenancies of Lochmaben, and the rental rights still surviving in the gypsy capital at Town and Kirk Yetholm in Roxburghshire. Land held under entail will be disentailed and the Register of Entails closed; all unextinguished rights of thirlage will be extinguished; partnerships will become capable of owning land in their own names; and feudal terminology such as infeftment, and the modern draftsman’s Anglicising favourite, estate or interest in land, will cease to be used. All this means a holocaust of existing legislation: 45 statutes will be entirely repealed, along with 246 sections, 57 schedules and many obsolete and unnecessary words in other Acts (para 1.4). The Report is also of interest for discussions of the legislative competence of the Scottish Parliament in relation to these matters, in particular as the proposals affect the Crown (with regard to baronies in particular), and the law of partnership, which are reserved matters (paras 2.43-2.44, 9.28), and of the requirements of the European Convention on Human Rights in relation to compensation schemes (paras 5.65-5.68). It is anticipated that the Report will be one of the first acts of law reform in the Scottish Parliament. The legal historian tempted to shed a tear for the good old law must acknowledge the force of the Commission’s observations that the main reason for recommending the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money … [para 1.16] … It now serves no useful function. It has become an anachronism which needlessly complicates the law [para 1.17]. Comfort may also be sought in the preservation of the pre-feudal Lord Lyon’s jurisdiction in relation to coats of arms (which are not to be regarded as feudal); in the decision not to seek the abolition of udal land in Orkney and Shetland; and in Schedule 8 para 1 of the Commission’s draft Bill which amends the Mines and Metals Act 1592 as follows: … (d) for the words saidis fewis substitute disposition of the saidis mynis (e) for the words four witnesses substitute ane witness … (15 February 1999)

(49)  Procedure in the Scottish Parliament

The all-party Consultative Steering Group for the Scottish Parliament published its report on 15 January 1999. It recommends that the Parliament should sit for 30-33 weeks per year, with Mondays free for constituency work. The daily working hours will be 9.30 a.m. to 5.30 p.m. MSPs will address each other by name and generally in English, although Gaelic speeches will be permitted. An electronic voting system will be used, and constituents will be able to contact MSPs by email. The chamber will be horseshoe-shaped in order to create a less confrontational atmosphere than prevails in Westminster. The Parliament will have its first official sitting a week after the election on 6 May 1999, and will be officially opened by the Queen on 1 July 1999, at which point full legislative powers will come into operation. (17 January 1999)

(48)  Land Reform

The Government’s Policy Group published its Recommendations for Action on 6 January 1999. The Group was set up in October 1997 to identify and assess proposals for land reform in rural Scotland. Amongst its recommendations were support for abolition of feudal tenure, the reform of leasehold casualties and real burdens (all work being carried out by the Scottish Law Commission – see No 50 above), as well as legislation (1) to allow time to assess the public interest when major properties change hands; (2) to give duly constituted community bodies a community right to buy land in areas of special importance in rural Scotland as and when it changes hands; (3) to give Scottish Ministers a new compulsory purchase power exercisable where it appears to them to be in the public interest; (4) a power for the Secretary of State to investigate the beneficial ownership of land where a clear need for such information exists in the public interest; and (5) creation of a publicly accessible but non-authoritative database on rural landholdings by disclosure of data held by relevant public bodies and public utilities. The Group also recommended that a right of responsible access to land for informal recreation and passage on enclosed as well as open and hill ground should be enshrined in law, possibly as part of the main land reform legislation outlined above. (7 January 1999)

(47)  Lockerbie trial: developments

On 15 December 1998, following a meeting some ten days earlier between Colonel Gaddafi and Kofi Annan, Secretary-General of the United Nations, the Libyan People’s Congress (the highest legislative and policy-making body under the Libyan Constitution) at a session held in Sirte announced that it approved the proposal for a neutral country trial of the two Libyans accused of placing a bomb aboard PanAm Flight 103 which then exploded over Lockerbie on 21 December 1988. It adjured all three interested governments, namely Libya, the United Kingdom and the United States, to take the necessary steps to remove all remaining obstacles to the occurrence of the trial. The principal remaining obstacle to a trial is the issue of where, if convicted, the accused should serve any sentence of imprisonment. Britain and the United States insist that this should be in Scotland and not in either the Netherlands or Libya itself. (21 December 1998)

(46)  Woofie, the French sex goddess and Scots law

After a hearing in Peterhead sheriff court in September 1998, Sheriff Kiernan McLernan ordered the destruction of Woofie, a collie-boxer cross bitch belonging to Terry and Anne Swankie. The Swankies had pleaded guilty to a charge under the Dangerous Dogs Act 1991 that their dog was dangerously out of control in a public place, after she barked at (but did not bite) and chased a postman down the street. On 20 November 1998, however, the High Court of Justiciary overturned the sentence. No doubt the court was uninfluenced by a Save Woofie campaign in the tabloid press and the presence in court of Brigitte Bardot, who flew from St Tropez to support Woofie’s appeal. Woofie’s character was further blackened in the course of the proceedings by the calumny contained in some of the court papers that her name was Wolfie.

(45)  The Scotland Act 1998 and the Scottish Parliament

The Scotland Act 1998 completed its passage through Parlament and received the Royal Assent on 19 November 1998. The Bill underwent some major amendment in its later stages, in particular with regard to the controversial issue of the removal of judges (see (1998) 2 Edinburgh Law Review 127-128). Under s 95 of the Act a judge of the Court of Session may be removed from office only by the Queen acting on the recommendation of the First Minister. The First Minister may so recommend only if Parliament has so resolved. Before the First Minister can put a motion to the Parliament for the removal of a judge, the matter must have been investigated by an independent tribunal, determining whether the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour. The tribunal will be chaired by a person chosen from among the Lords of Appeal in Ordinary and peers or members of the Judicial Committee of the Privy Council. It is to consist of at least three persons. The Lord President may request the First Minister to appoint a tribunal (a provision apparently inserted at the request of the present Lord President). The Act also contains a rule that Acts of the Scottish Parliament which could be read in such a way as to be outside the Parliament’s legislative competence shall be read as narrowly as is required for them to be within competence if such a reading is possible (s 101). Parts of the Scotland Act (mainly those dealing with elections) came into force as soon as the Act came into force. Under the Commencement Order made on 16 December 1998 other provisions came into force on 25 January 1999, allowing secondary legislation for transfers of property. Further parts setting up the Scottish Consolidated Fund will come into force on 1 April 1999, while the main batch of provisions, dealing with the constitution, proceedings and operation of the Parliament, come into force on 6 May 1999, to coincide with the elections. The Lord Advovcate and the Solicitor General for Scotland will become members of the Scottish Executive on 20 May 1999 and will be transferred out of the UK Government. Most remaining provisions will come into force on 1 July 1999, apart from a few on accounting matters, which will be held over until 1 April 2000.

(44)  Cultural restitution: the ghost dance shirt

On 19 November 1998 Glasgow City Council announced that it had agreed to the return to the Lakota Sioux of the ghost dance shirt worn by a member of the tribe killed at the massacre of Wounded Knee, South Dakota, in December 1890. (More than 250 men, women and children of the Lakota Sioux were shot by the Seventh Cavalry in the incident.) The shirt, which was an important religious symbol enabling the wearer to invoke the spirit of his ancestors and making him invincible against the white man’s bullets, has been held at the Kelvingrove Museum in Glasgow since January 1892, when it was given to the city by a Lakota translator working with Buffalo Bill Cody’s travelling Wild West show, which was in Glasgow at the time. A spiritual ceremony called the Wiping of the Tears will be held to mark the shirt’s return to its native soil, where it will first form part of an exhibition at the Cultural Heritage Centre, Pierre, South Dakota, before becoming a permanent exhibit in a museum to be built at Wounded Knee itself. The Lord Provost of Glasgow, Pat Lally, denounced the decision as an emotional spasm setting a dangerous precedent (Scotsman, 20 November 1998).