[Home]
[Up]

SISTER SITES
Caledonia
Who Owns Scotland?
Social Land Ownership
Land Reform Guidance
Commonweal Papers
Networks of Agents
Training of Trainers
Briefings

Crown Rights - The Paramount Superiority and the Abolition of Feudal Tenure Etc (Scotland) Bill

Sir Crispin Agnew of Lochnaw Bt, QC - December 1999

Contents

Introduction

I have been asked to prepare a preliminary outline Brief for Scottish Environment Link on the consequence of the proposal to abolish the paramount superiority of the Crown as part of the proposals for abolishing the feudal system in Scotland.

Background

Every legal system is founded on a particular legal theory, which has consequences for the way in which the courts will interpret the legal rights and obligations that arise under that legal system. In Scotland the legal theory of landownership has been that the Crown owns all land for the benefit of the community of the realm and that the Crown grants out rights in that land to subjects, who hold that land under the Crown’s paramount superiority or dominium eminens.

Professor MacQueen wrote¹:

"…. in feudalism landownership and sovereignty coincided, so that the Crown’s sovereignty over Scotland and its dominium eminens, ultimate tenurial superiority, were the same thing, identical concepts."

Differing Legal Interpretations

The extent of the Crown’s ultimate rights as owner of all the land for the benefit of the community is far from clear in law, with the leading text book writers differing as to the extent or even the source of those rights; e.g. whether they derive from the paramount superior or from sovereignty. As sovereignty and the paramount superiority were so inter linked in feudal theory, it is not surprising that there is still doubt as to which Crown rights derive from the sovereignty and which from the paramount superiority.

The Scottish Law Commission Proposals

It is of note that the first bill proposed by the Scottish Law Commission in 1991 provided:

" 31 (ii) the abolition of the feudal system of land tenure shall be without prejudice to any other rights, privileges, benefits of or derived from the Crown by virtue of the paramount superiority."²

The present bill contains no such reservation and indeed the draft Clauses would appear to have the effect of severing all connection between the land and any other rights, privileges, benefits of or derived from the paramount superiority.

Clause 2(1) provides:

(1) An estate dominium utile of land shall, on the appointed day, cease to exist as a feudal estate but shall forthwith become the ownership of the land and, in so far as consistent with the provisions of this Act, the land shall be subject to the same subordinate real rights and other encumbrances as was the estate of dominium utile."

Severing the Links between Ownership and the Public Interest in Land

If enacted, it is my opinion that, Clause 2(1) will have the effect off severing the ownership of the land from any superiority rights in or over the land, including any rights of the Crown as paramount superior.

I do not consider that Clause 56 saves any of the rights of the Crown in or over the land held for the benefit of the community because that Clause only provides:

"….nothing in this Act shall be taken to supersede or impair any power exercisable by Her Majesty by virtue of Her prerogative power ……."

Clause 56 only saves powers exercisable by virtue of the prerogative, but not any powers exercisable by virtue of the paramount superiority.

Crown Rights derived from the Paramount Superiority

The Scottish Law Commission have considered Crown rights in their recent discussion paper³. They have considered the regalia majora and the regalia minora. They refer to certain rights being vested in the Crown by virtue of statute. They refer to rights still vested in the Crown, which have not been granted out to a subject.

Crown Rights In and Over Land

What the Commission do not appear to have considered is the Crown’s rights, which derive from the paramount superiority, not only in, but over all land, and which can be exercised by the Crown for the benefit of the community.

While actual rights in land (e.g. mineral rights, rights in foreshore, etc.), which have not been granted out, would be retained under the present Act, rights over land for the public interest may well be affected by Clause 2.This Clause excludes superior real rights from having an effect on the land which, under the Act "become ownership of land", while preserving "subordinate real rights and other encumbrances". This is particularly so, where the law is not clear as to which rights over land may be said to derive from the royal prerogative and which from the paramount superiority.

For example, it is not clear whether the regalia majora and minora, which include navigation rights in rivers and the rights of the public to go onto the foreshore, even if the foreshore has been granted out, derive from the paramount superiority or from the rights of the sovereignty⁴.

The Scottish Law Commission in its July 1991 Discussion Paper para 5.13 refer to:

"The origins of the Crown’s rights to the regalia both minora and majora are uncertain and the extent of these rights has never been clearly defined. Accordingly we cannot be sure that an unqualified abolition of the paramount superiority would not affect the crown’s rights to the regalia. Erskine, at least appears to consider that the Crown’s right to the regalia is bound up in the feudal system. This is the view which appears to be borne out by the cases concerning udal tenure in the early part of the century."

Law Commission Fails to answer the Public Interest Concern

I have seen nothing in the Law Commission’s discussions of Crown rights in the February 1991 Discussion Paper, which answers that concern.

Further as Professor MacQueen notes, sovereignty and the paramount superiority are inter linked, so that the theory regarding to which right they pertained did not need to be determined in a feudal society.

The Crown presently Controls Land Use

It has always been accepted that the Crown may legislate through parliament to control uses of the land⁵ and to reserve rights to the Crown⁶ and that without compensation inappropriate cases⁷. No one has examined the basis on which the Crown may control the use of land, reserve to itself parts of the land and that without compensation. It is arguable that this arises from the Crown’s dominium eminens.

If absolute ownership to land is given by the proposed Act, then the legal basis on which that ownership can now be controlled may be lost. With the introduction of the European Convention on Human Rights into Scots Law⁸ and its consequences for compensation under Article 1 of the First Protocol, the residual rights of the Crown under the dominium eminens may have an impact on the quantum of any claim⁹.

Unwise not to Reserve the Rights of the Crown

In circumstances where the Scottish Law Commission can now only say that "we do not believe that the complete abolition of the feudal system of land tenure would affect Crown rights other than those manifestly held as a feudal superior…." It would appear to be unwise not to reserve the rights of the Crown as paramount superior as proposed in the first draft Bill. This is particularly so, when in 1991 they expressed concern that "we cannot be sure that an unqualified abolition of the paramount superiority would not affect the Crown’s right in the regalia."

If the courts subsequently establish Crown rights, which are deemed to be inappropriate, legislation could be introduced to remove them. Conversely, if the courts held the Act had lost appropriate rights, then they could only be re-introduced at the risk of having to pay compensation.

Further Information

Scottish Environment LINK can be contacted through the following e-mail addresses: John Digney who heads the LINK Land Reform group john.digney@ukgateway.net or www.scotlink.org

The Scottish Land Reform Convention can be contacted through: Allan Watt e-mail: allan@cosla.gov.uk

References

Back
Home
Up
Next