Confounding Consultations

The Scottish Government’s Consultation on the Proposed Community Empowerment and Renewal Bill draws to a close on 26 September 2012.

I have already blogged about certain aspects of the consultation. Rather than rehash previous utterances, I will offer some brief views about the consultation exercise itself. There are many interesting questions in it, and no doubt the responses to them will form a solid basis for draft legislation next summer. That being so, there are also a few questions therein seem particularly incongruous. For example, embedded within this community empowerment exercise, Question 14 asks whether the Scottish Government should “do more to promote the use of the existing tenant management rights in sections 55 and 56 of the Housing (Scotland) 2001 Act?” These sections, which are currently in force, fall under the banner of “Tenant Participation” and allow tenants to form together into associations to undertake certain tasks that might ordinarily fall to (and perhaps be overlooked) by certain types of “social” landlord, but without displacing any obligation the landlord has at law. To me, this question is curious. The Scottish Government should do more to promote the use of any law that is underused and might be of utility to the residents of Scotland, irrespective of any consultation for new law.

Moving on, what else is asked? Question 22 notes that, “The public sector owns assets on behalf of the people of Scotland”, before asking, “Under what circumstances would you consider it appropriate to transfer unused or underused public sector assets to individual communities?”

Am I missing something? To me, the question answers itself. When such assets are unused or underused, what is the justification for keeping them unused or underused? As such, subject to appropriate clawback mechanisms (akin to s 35(3) of the Land Reform (Scotland) Act 2003), if the assets remained unused or underused, a transfer seems appropriate. Next?

Question 38 queries, “What changes should be made to local authorities’ powers to recover costs for work they have carried out in relation to dangerous and defective buildings under the Building (Scotland) Act 2003?” Again, this is curious. The proposed legislation is about ensuring the public sector use their assets for the community or allowing the community to access such assets (by temporary occupation, a formal leasing arrangement or an outright transfer). In terms of the Building (Scotland) Act 2003, if the building is a public asset, the (public) landowner will have to fix it, so extra powers will make little difference. If it is a community asset, the community will have to deal with it as per any suitable business plan; hitting a community with new enforcement powers might not be particularly empowering. If the asset is privately (i.e. non-community/non-public) owned, ss 28-30 of the Building (Scotland) Act 2003 already provides a suitable scheme for recovery of costs. Why is there a need to include this in a consultation on something completely different?

One other question wound me up. Question 25 asked about “common good”. I offer this simplification. In Scots law, common good is not easy. Ask the residents of Portobello about common good assets and you may get an interesting answer. Indeed, its inclusion in the Community Empowerment and Regeneration consultation exercise at all is questionable. To my mind, it would be preferable to answer this question in the context of a wider, dedicated consultation on common good assets, but in any event the specific question seems a little loaded. The question asks, “Do the current rules surrounding common good assets act as a barrier to their effective use by either local authorities or communities?” If the answer is that the rules are a block, the block only comes into effect when the terms of reference for such common good assets are tested. Such a “block” may or may not be relevant in present-day Scotland, so a test of the language of the relevant “conveyance” of the asset to the common good might be needed. If the language is dated, contemporary Scotland might make use of powers akin to the Court of Session’s jurisdiction in relation to trusts that end up obsolescent. I am not at all sure sweeping changes of common good asset regulation should be part of this exercise, lest its purpose be usurped.

So there we have it. Maybe I could have dodged these questions, but that would have been far too boring. I am not alone in whinging about such consultations (witness Dr Peter Matthews’ musings), so please don’t write me off as a lone naysayer. Most importantly, I am not going to stop at heckling. A full response will be going in to the Scottish Government in time for the deadline, just as soon as everyone from the Rural Law Research Group at the University of Aberdeen is singing from the same hymn sheet. You still have a few days to get a response in as well, even if you miss out the troublesome questions I highlight above.