Crown Rights - The Paramount Superiority and the Abolition of Feudal Tenure Etc (Scotland) Bill
Sir Crispin Agnew of Lochnaw Bt, QC - December 1999
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.
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 Crowns paramount superiority or dominium eminens.
Professor MacQueen wrote1:
The extent of the Crowns 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:
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:
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:
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 Crowns 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:
Law Commission Fails to answer the Public Interest Concern
I have seen nothing in the Law Commissions 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 Crowns 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 Crowns 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.
The Scottish Land Reform Convention can be contacted through: Allan Watt e-mail: firstname.lastname@example.org