SUPERIORS' EXISTING RIGHTS (Hansard, 15 July 1974)

§ Mr. Michael English (Nottingham, West)
I beg to move, That the clause be read a Second time.
I suppose that your hesitation in calling me, Mr. Deputy Speaker, was caused by the fact that it must be a little unusual for a Member representing an English constituency to move at an earlier hour an amendment to an Irish Bill, then to move a new clause to a Scottish Bill at this hour and to be facing the prospect of chairing a Committee considering a Welsh order tomorrow morning. However, if I promptly declare an interest in the subject matter of this Bill it may explain why I am proposing the new clause.
Technically I am a superior, to use a term of art in Scottish law, and there fore the Bill affects a financial interest of mine. It is a very small financial interest. I assure my right hon. and learned Friend the Lord Advocate that I am wholly in favour of the purpose of the Bill, namely, that feuduties should eventually be extinguished or be capable of redemption.
I move the new clause to ascertain one point. If I relate a small story it will illustrate the case. What I understand often happens in Scotland happened in the case of my feuduties. Someone built a couple of houses on a piece of land without asking the then superior, who was my predecessor in title. The argument was settled in writing but not in due legal form until the first of the many Bills on this subject proposed by my party in a former incarnation. At this point nobody wished to settle in the final due legal form because of the checkered history of the proposed reform.
199 Finally—this is a bit of cheek which leads me to believe that this situation is not unique to me but affects many people in Scotland—a solicitor recently sent out a printed circular saying that he would not do anything about cases of this character because of the prospect of legislation of the type we are considering. Therefore, I wish to ensure by the new clause that something which has been going on for years and which would have been settled but for the prospect of legislation can still be dealt with and that any rights which superiors have cannot be taken away. A feu which could or should have been created can be redeemed under the Bill. That is not my concern. I am concerned that the Bill should not take away rights which would have been compensated but for the Bill.

§ The Lord Advocate (Mr. Ronald King Murray)
My hon. Friend the Member for Nottingham, West (Mr. English) has raised an interesting point. I can give him the general assurance which he seeks. The Bill has been drafted carefully so as to ensure that any existing rights which a superior may have—for example, to enforce land conditions, but it is not limited to that—are not adversely affected as a result of the redemption of feuduty.
It is expressly provided in the Bill that when a feuduty is redeemed the feu shall continue in force otherwise as if the feuduty were not redeemed. My hon. Friend will realise that that is a perfectly reasonable legal expedient for ensuring that in general the rights which he wishes to hold entire remain entire.

§ Mr. Barry Henderson (Dumbartonshire, East)
I wonder whether the Lord Advocate can guide us. It seems to me that the new clause totally nullifies the object of the Bill. At present superiors have rights of feuduty in perpetuity, and the result of the Bill would be retrospectively to remove those rights. Therefore, I should have thought that passing the clause would result in completely wrecking the work done so far. However, as the Bill deals with broad principles will the Lord Advocate give an assurance about any discussions he may have had with his right hon. Friends on the problems that will arise from the Bill for people who suffer tax losses?

§ The Lord Advocate
I should be straying into dangerous waters if I attempted in this debate to go into the question of tax losses. If the hon. Gentleman will write to me on the detailed point I will consider it.
Were it not that my hon. Friend the Member for Nottingham, West (Mr. English) has indicated that if he receives my assurance he will seek to withdraw the clause, I would have to point out that the clause as drafted is inconsistent with the principle of the Bill. The Bill seeks to excise feuduties from the rights of superiors, and in certain detailed ways it must act to some extent retrospectively.
The important matter on which my hon. Friend seeks assurance—and this assurance I give him—is that the package is so arranged that it is designed to excise the feuduty and leave the feudal package otherwise unchanged.

§ Mr. English
My hon. and learned Friend is entirely right. I read English law and not Scots law, so it is entirely probable that my technical drafting would not achieve the object I have in mind. My hon. and learned Friend has entirely satisfied me, and I therefore beg to ask leave to withdraw the clause.