Court battle looms over Scotland’s top court buildings swiped by legal fraternity AS LAND GRABS go, the Faculty of Advocates ‘assuming title’ to parts of the nation’s top court buildings – Parliament House in Edinburgh - must rank pretty high on the list of Scottish land swindles.
Even more so if you take into account the land grabbers in this case – highly paid advocates clad in Victorian robes – who appoint each other as judges, prosecutors and the like, and debate ordinary folk’s lives, loves & rights as if they did not even exist – have the last say and last word on ‘justice’ and many aspects of politics and public life in what passes for ‘modern day’ Scotland.
The great Parliament Hall land title swindle – revealed by land reform campaigner Andy Wightman - where land titles to the buildings of Scotland’s top courts were ‘gifted’ by Scottish Ministers to the Faculty of Advocates - has now prompted Edinburgh City Council to demand the return of what is, common good property – our top courts – which clearly have significant interest to the nation.
However, Scottish Ministers – including the First Minister, lawyers and other Govt. advisers, appear to feel otherwise.
A trove of eighty eight pages of documents released to DOI under Freedom of Information legislation reveal the Scottish Government plan to do nothing over their handing over of the Parliament Hall land titles to the Faculty of Advocates.
And, throughout the documents – which contain communications between civil servants, briefings to Ministers, land reports and letters from Edinburgh City Council asking for meetings, it is clear Scottish Ministers favour leaving the titles to the nation’s top courts with the vested interests of the legal profession.
The titles to the Laigh Hall – Parliament House – Queen Street - currently stand in the name of “SIDNEY NEIL BRAILSFORD Queen's Counsel, Treasurer of HONOURABLE THE FACULTY OF ADVOCATES Edinburgh, as Trustee and in Trust for said Faculty”. Sidney Brailsford is none other than High Court Judge Lord Brailsford.
Scottish Government files reveal how court titles were handed over to advocates After a series of briefings with Ministers – involving everyone from the Lord Advocate & Solicitor General to the Cabinet Secretary for Justice, Minister for Legal Affairs and others, a position was adopted by Scottish Ministers “That we confirm to Council officials that it is the Scottish Government's position that title to Parliament Hall was taken by Scottish Ministers in good faith and with the full knowledge and consent of the Council. The Scottish Court Service and Faculty of Advocates therefore have good title to the property and Ministers propose no further action.”
Lawyers for the Scottish Government also sought to distance themselves from the huge £58 million taxpayer funded spend on the Scottish Court buildings – long after titles were handed over to the advocates.
One lawyer stated in an email: “Was the PH [Parliament Hall] refurb about £60m? It went over in the SCS [Scottish Court Service] budgets I think but from my recollection of briefing on their budget it is not easily identifiable within their budget lines. So SCS [Scottish Court Service] spent the money not SG [Scottish Government]?”
In another memo, it is revealed Edinburgh City Council may be compelled to take legal action to recover the titles and details an example of how Common Good land disputes have affected legislation in the past.
“The City of Edinburgh Council has intimated to the Scottish Government that it considers that it is the rightful heritable proprietor of both Parliament House and the Laigh Hall. It contends that the property was part of the Common Good Fund which is made up of grants of land owned by the Council. Consequently it maintains that Scottish Ministers should never have taken title to it. Representatives of the Council have asked that the position be rectified and the property returned to the Council. Scottish Government officials have met with Council officials and suggested to them that their remedy lies with the Keeper.
The Council may feel compelled to take action because, in their view,the property may have been part of the Common Good. Ministers, will be aware of disputes over Common Good land in the past. For example, when the Long Leases (Scotland) Act 2012, which converts ultra-long leases to ownership, was going through Parliament [redacted] land reform campaigner argued that the Waverley Market in Edinburgh was part of the common good. Edinburgh City Council said it was not part of the common good but still argued that the Waverley Market should not convert to full ownership under the Bill, so that the Council would remain the landlord in the lease over the property. In the end, the Bill was amended so that commercial leases with less than 175 years to run were not covered, which had the effect of excluding the Waverley Market from the Bill.”
An internal Scottish Government briefing of the meeting which took place between Edinburgh City Council and the Scottish Government makes for grim reading at the Council after Scottish Government civil servants stated the Council’s claim for a return of the titles may rest on moral rather than any legal right:
“Parliament House - Meeting With City of Edinburgh Council - 3 Dec. 2014 - - Main Points
SG - this was a courtesy meeting to hear what the concerns of CEC were as they had had difficulty finding somebody in central government to engage with.
CEC - an elected member had triggered an examination of the Parliament House non domino title and CEC officials concluded that the title trail was mistaken and CEC had an interest still. They had examined titles from the 1550s, 19th century, 1905 Common good records, 1925 entry in registers etc.
They were unhappy with the Scottish Ministers title and the subsequent transfer to the advocates and the SCS. It seemed that their case rested on a perceived moral right, rather than any legal titular right.
SG emphasised that it had no locus because:
• Questions about land registered titles are for the Keeper and the Keeper's indemnity;
• The Scottish Government had transferred the property to the Advocates (Laigh Hall), and the Scottish Courts Service** a judicial led body at arms-length from the SG and so we could not discuss what we did not own.”
A detailed briefing prepared by a civil servant sets out what happened and how the Faculty of Advocates ‘secured’ ownership to parts of the sprawling, highly prized real estate which is Scotland’s top court and symbol of judicial & legal power:
“The position as regards title to the entire property is unclear, however, it would appear that Scottish Ministers (formerly the Secretary of State for the Environment, Transport and the Regions) did own part of it and so steps were taken to register a title in order to remove any uncertainty. Consequently, a voluntary registration was granted in favour of Scottish Ministers on 23/11/2005 with a date of entry of 10/11/2005.
As part of the process of registration the Keeper of the Registers of Scotland received a letter from the City of Edinburgh Council confirming that the Council had no right, title or interest in the property. On that understanding, the Keeper issued Ministers with a Land Certificate without exclusion of indemnity which has the effect of the Keeper having to indemnify a proprietor who suffers a loss as a result of the title being successfully challenged.
Scottish Ministers subsequently made an onward transfer in January 2006 of part of the property, namely Laigh Hall which sits underneath Parliament Hall, to the Faculty of Advocates who now hold a registered title.
When the Scottish Court Service became an independent body corporate on 1 April 2010 title to Parliament House was transferred to it under the Property Transfer Order made under powers in the Judiciary and Courts (Scotland) Act 2008. Scottish Ministers therefore no longer hold a title to either Parliament House or the Laigh Hall.”
At this time Edinburgh City Council is thought to be considering its next move.
If legal action is to take place, the Council will ultimately be represented by top advocates who as members of the Faculty of Advocates will have an interest in ownership in Parliament House. The case will be defended by the Faculty of Advocates and will be heard in a court within Parliament House – partly owned by the Faculty of Advocates and the ‘arms length’ institution of the Scottish Court Service – so ‘arms length’ it squanders £60 million of taxpayers money on buildings not even owned by taxpayers.
As previously reported, Scotland’s First Minister Nicola Sturgeon has already given her blessing to the multi million pound title handover freebie to the Faculty of Advocates. The First Minister claimed there was “no easy solution to the issue of restoring title to the City of Edinburgh Council”. The First Minister’s response to a question from Green Party MSP Alison Johnstone during First Minister’s Questions, follows:
Official Report of debate: Alison Johnstone (Lothian) (Green): It transpired this week that the 17th century old Parliament hall in Edinburgh was transferred from the collective ownership of my constituents to Scottish ministers without knowledge or recompense to the common good fund.
The City of Edinburgh Council failed in its role as steward of the fund, but is now seeking to resolve the situation. Can the First Minister assure my constituents that any requests from the council to restore ownership of that common good asset to the council will be considered seriously and favourably?
The First Minister - Nicola Sturgeon: I will briefly state the background to this issue, of which I am sure that Alison Johnstone is aware.
The Scottish Government’s position is that title to Parliament hall was taken by Scottish ministers in good faith, and that that was done with the full knowledge and consent of the council. The Scottish Courts Service and the Faculty of Advocates, therefore, have now got good title to that property.
Of course, I am more than happy to ask the relevant minister, Marco Biagi, to; meet and discuss the matter with the City of Edinburgh Council, but as far as I can see there is no fault here on the part of the Scottish Government.
Further, of course, title has since been passed on, so it may very well be that there is no easy solution to the issue of restoring title to the City of Edinburgh Council. I think that any questions on how the situation has arisen probably have to be directed to the council.
TOP JUDGE SILENT OVER PARLIAMENT TITLE SWAP
In the summer of 2013, Scotland’s top judge Lord Gill – head of the Scottish Court Service Board, and the Scottish Court Service Chief Executive Eric McQueen appeared before MSPs at the Scottish Parliament’s Justice Committee to give evidence on court closures and the millions spent on Parliament House – yet neither the judge nor the Courts chief mentioned their astonishing secret to the MSPs present – that the title to Scotland’s highest court buildings had been swiped by the Faculty of Advocates in a deal on the sly with Scottish Ministers.
During questions from Justice Committee MSPs, SCS Chief Executive Eric McQueen gave evidence on the massive £60 million taxpayer funded spend on Parliament House.
The Court Service Chief told MSPs: “We are just coming to the end of the Parliament house contract; in total, the budget for it was £65 million and I think that we expect the final spend to be in the low £60 millions. The project has been delivered on budget, on time and on quality. How it has been delivered is a tribute to the Scottish Court Service.
McQueen continued: “I will give a potted history of the Parliament house situation. About 10 years ago, a scheme was in place that was going to run to way over £120 million. That was brought to a stop to allow us to reassess things and to consider the best strategy. At the same time, we looked at a business case for moving away from Parliament house altogether and having a development on a greenfield or brownfield site on the outskirts of Edinburgh. The major problem with Parliament house is that it is a grade A listed building and is a site of special historical interest. It should be a landmark building for the whole of Scotland.”
In an intervention, the Convener of the Justice Committee – Christine Grahame MSP said: “I am glad that you did not move to a greenfield site. It would have been a bit like going to B&Q. I do not mean to malign B&Q, but I like the old Parliament house building.”
Eric McQueen replied : “Had the decision been taken to move out of Parliament house, that asset would have been left with the Scottish Government. The infrastructure and the services were shot, and there was no fire certificate in place for the building. It would have cost as much to move out as to redevelop the building. From the point of view of the benefit to the nation and to the Scottish Government's purse, the investment of the £65 million in Parliament house over that five or six year period was quite a sensible business case decision.”
Sitting beside Eric McQueen was Lord President Brian Gill, who did not at any stage of the meeting volunteer information to the Justice Committee in relation to the titles arrangements of Parliament House, despite the multi million pound taxpayer funded refurbishment.
Pressed for a statement on why Lord Gill or Eric McQueen did not inform the Justice Committee of the fact tens of millions of pounds of taxpayer money had been spent on a building partly owned by the Faculty of Advocates – the Judicial Office refused to give any comment.