Selkirk Common Good
Selkirk’s Common Good consists of land, including 3 farms which are tenanted, a golf course, Selkirk Hill, several buildings and other property in and around the town, fishing and shooting rights and a quantity of ‘moveable assets’. The boundaries of the land, some 1300 acres largely comprising the farms, has remained virtually unaltered since the Act of 1681 when Selkirk was forced give up 85% of its common land to powerful surrounding landowners. It is the marches of this land which are ridden at Common Riding, and although nowadays riding the marches is symbolic, in days gone by was the way of protecting the Burgh’s ownership.
The wording of the still extant King James IV Common Good Act of 1491 enacts that the Common Good is ‘kepit to the commoune gude of the toun and to be spendit in commoune And necessare thingis of the burght be the avise of the consale of the toune for the tyme…’
This makes a clear distinction between town inhabitants as beneficiaries and the relevant Burgh Councils tasked by the act to administer the common good.
While in subsequent centuries, the legal title was deemed held by the Burgh Councils, this did not alter the fact that the beneficial ownership remained with the inhabitants of individual Burghs.
Under the Act of Union of 1707 (Sect. XXI), ‘Burrowes’ rights were protected ‘for all tyme comeing’ and the complete abolition of Burghs attempted in the Local Government (Scotland) Act of 1973 could not constitutionally take place without rescinding the 1707 Act of Union. The rights of Burghs under the 1707 act had to be protected and the 1973 act embodied this with respect to Common Good Funds (CGFs). The ‘transfer of ownership’ that occurred within the 1973 act involved only the transfer of title and the beneficial ownership remained (and does to this day) with the inhabitants of a former Burgh. The Local Authority (LA) was given powers under the act to administer the Common Good for the benefit of the Burgh and its inhabitants and the act gave powers to all elected local councillors to act as what effectively constituted ‘trustees’ of all CGFs within what became a unitary local authority under an act of 1995. This means that the current 34 elected councillors from everywhere in the Borders can legally decide on what happens to Selkirk’s CGF. In practice, a small group of locally elected councillors decide on Selkirk’s CGF with input from one community councillor but he/she cannot vote.
Because the administration of Common Good Funds (CGF) prior to 1973 was deemed sometimes less than satisfactory, the 1973 act was intended to remove irregularities and introduce a measure of commonality throughout Scotland in the management of CGFs. This it largely achieved, but several problems remain:
1) The 1973 act was drafted in such a way as to allow different interpretations by individual LAs. The act and subsequent revisions specify that CGFs must be administered ‘having regard to the interests of the inhabitants’. This passage is legally imprecise and allows a range of options to a local authority in its observance.
2) The registers of ‘fixed’ and ‘moveable’ assets inherited from Burgh Councils by LAs, often incomplete and inaccurate, have not been investigated, corrected or kept up-to-date. To some extent, these deficient registers are a legacy from the inefficient record keeping by former Burgh Councils.
3) Many CGF assets are no longer administered by the LA through the CGF but are administered by different LA departments and, due to the passage of time, their association with the CGF has been largely forgotten.
4) Under the act, a community council has virtually no control over the administration of its own burgh’s CGF which it did have as a community represented by the former Burgh Councils.
5) Any removal of an asset from a CGF must, under the law, be replaced by an asset of similar value. Historically this has not always happened and several legal cases have resulted. Selkirk for instance, in 1996, lost the asset of the Ettrick Park football ground belonging to the CGF without compensation.
The Community Council (CC) recognises that the administration of CGFs is complex and time-consuming and in terms of the overall budget of the LA, comprises a relatively unimportant amount and requires a disproportionate time to administer. It is our aim to assist the LA in getting the registers corrected before time and usage makes this too clouded in the mists of time and to correct any mistakes that have occurred before any further changes take place making this more difficult.
We are also keen to assist the LA in exploiting development of Common Good assets in order to enhance their value and thereby benefit the community.
We have consistently opposed any arrangements that diminish further the input of the local community into affairs of the Selkirk CGF and will continue to do so.
We consider it of paramount importance that Selkirk protects its inheritance of its Common Good Fund in the same way that any individual protects what is rightfully theirs. That is what the Community Council is trying to do.
It is important that Burghs realize the existence of their inheritance and it is the responsibility of all Burgh residents to be aware of the value of this inheritance and protect it for the benefit of future Burgh inhabitants.
Cllr. Lindsay Neil