The Crown Estate is both a feudal relic and the last gasp of Empire argues Andy Wightman.

Forty years ago, the first fish farms appeared in Scotland’s west coast sea lochs. No planning consent was required and as they spread, local politicians and campaigners became aware of the unaccountable and remote body that is the Crown Estate Commissioners. Since 1961, they have been responsible for managing Scotland’s Crown Estate and as their tentacles spread, they began demanding rents and levies from harbours and moorings that had previously invested in coastal facilities but not ever imagined they needed to pay rent for the privilege.

For the best part of 40 years, there has been an active campaign to eliminate the malign influence of the Crown Estate Commissioners by, for example, the West Highland Free Press and politicians such as Brian Wilson and Michael Foxley [for more background on the Crown Estate see also here – Ed]

Scotland’s Crown Estate derives from two sources. The first is ancient rights that belong (or were asserted to belong) to the Crown by default – gold and silver, the foreshore, mussels and oysters, salmon and the seabed. The second are conventional and more modern acquisitions of ordinary property – offices, farms and retail premises. Historically this first set of rights had always administered in Scotland until the 1830s when control went south to London the Crown’s rights to ownerless property and treasure trove which to this day are administered by the Crown Office with revenues paid to the Scottish Consolidated Fund.

Crown property, rights and interests in Scotland have, for centuries ,been defined by Scots law and remain so. For most of their history, they have been administered here in Scotland and the revenue has flowed to the Scottish Exchequer with only a short hiatus between 1830 and 2017. They never, for example, formed part of the civil list when England’s crown revenues were surrendered in 1760.

In other words, this is a distinctive, historic set of rights that belong to Scotland.

This week was historic as, for the first time, the Scottish Parliament debated legislation about the future of the Crown Estate. Attempts to devolve powers in 1998 were blocked by the Treasury and the Palace with only the Crown’s property rights and the Crown prerogative included in the Scotland Act. These devolved rights over the Crown’s property rights were of limited utility whilst the management by the Crown Estate Commissioners was reserved.

But in 2014, in the aftermath of the independence referendum, the Smith Commission recommended that management and revenues be devolved and that management would be further devolved to Scotland’s local authorities

Despite UK Government guarantees that Smith would be implemented in full, legislative competence for the revenues of the Crown Estate was never devolved as it should have been. The Scotland Act 2016 stipulated that the revenues should be paid into the Scottish Consolidated Fund but the Scottish Parliament cannot change this. Nevertheless, with management devolved, a key obstacle to more fundamental reform was removed.

The Scottish Crown Estate Bill was introduced to Parliament in January 2018. This week’s debate on Stage One was preceded by a statement from the Justice Secretary, Michael Matheson:

“For the purposes of rule 9.11 of the standing orders, I advise Parliament that Her Majesty, having been informed of the purport of the Scottish Crown Estate Bill, has consented to place her prerogative and interests, in so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.”

That the Scottish Parliament must defer to Her Majesty in order to legislate is a symbol of the arcane nature of our democracy.

As for the Bill, it disappointingly, proceeds on the normative assumption that the Crown Estate is a coherent suite of assets which by law must be maintained as an estate in land on behalf of the Crown. It does this, in part, because the Scotland Act 2016 and the arrangements for the devolution of the management of the Crown Estate seek to restrain and curtail the Scottish Parliament’s freedom of manoeuvre.

I reject this assumption.

The Crown Estate is both a feudal relic and the last gasp of Empire. It includes gold and silver, rights to which date back to the oldest Scottish Act on the statute book, the Royal Mines Act of 1424. It includes the foreshore and the seabed, rights to both of which have no statutory basis. In relation to the foreshore, the Crown’s rights are said to be patrimonial rights derived from the Crown prerogative but in the words of the Scottish Law Commission, that is merely the “predominant modern theory.” As for Rockall, it was claimed by the Crown in 1955 in Britain’s last formal exercise of colonial power with possession being taken in the name of her majesty by Captain O’Connell of HMS Vidal who was given a royal warrant to seize the rock.

Crucially, Scotland now has the power to sweep away these anachronisms and in so doing free ourselves from the shackles of the 2016 devolution settlement. Put simply, the complex arrangements for managing Scotland’s Crown Estate proposed in the Bill can be dispensed with if we abolish the Crown rights themselves.

For example, despite the transfer of administration in 2014, there is no good reason why the medieval right of the Scottish Crown to naturally-occurring mussels and oysters has any place in a modern statute book. The Bill should abolish this right, confirm the species as ferae naturae – wild animals.

More substantially the Crown rights to the foreshore should be abolished. This Bill provides the opportunity to modernise the legal basis for the ownership of the foreshore and vest title in Scotland’s local authorities directly rather than through a complicated scheme of delegated management. Councils such as Orkney and Shetland have demonstrated over decades that they have the skills and capacity to discharge this responsibility competently and effectively.

In relation to the seabed, where the Crown’s ownership has no statutory basis, the Bill could vest it in the name of Scottish Ministers and create an equivalent to the National Forest Land Scheme to enable transfers of title to Scotland’s 248 local authority harbours and 46 Trust Ports ending decades of legal disputes and conflict between the Crown and many harbour and port authorities.

I will be consulting over summer on detailed proposals to effect the changes described above and will be seeking the support of other political parties to usher in a new era where medieval ideas of property can finally be consigned to the dustbin of history and we can make one small step on the way to becoming a modern, democratic society.

Image credit: Scott Hutchison