§ Mr. Brian H. Donohoe (Cunninghame, South)
I am grateful to be given the opportunity to speak on this subject. The situation started with a dispute between Mr. Thom and his neighbour, Mrs. Hetherington, who are both constituents of mine, concerning the single brick boundary wall between their respective properties. I have represented Mr. Thom for many years, and the case was raised on the Adjournment on 13 March 1996.
The case went to the Court of Session, where it hinged on whether the wall was jointly owned by both parties, more commonly known as "common property", or whether each party owned half of the wall up to the mid-point, which is known as ad medium filum. The court decided to opt for the ad medium filum option, meaning that Mr. Thom lost his case. However, there were two conflicting lines of legal theory and precedent, and the matter was thus referred to the Scottish Law Commission. The subsequent handling of the case is at the crux of Mr. Thom's complaint. At all points, the SLC has taken a long time to resolve the matter. Nine and a half years passed from the original referral to a report finally being produced.
The commission issued a discussion paper, to which Mr. Thom made lengthy submissions, pointing out that the decision by the court was irrational as there was no way in which to divide a single brick wall and, thus, the ad medium filum approach was inoperable. The same would be true if a fence were used, rather than a boundary. That much was conceded by the commission, which declined Mr. Thom's invitation to visit such sites as it was instead convinced by written and verbal representations.
Since the matter was first referred to the SLC, its composition has changed radically, and a committee of three has been set up to investigate the situation.
One new member of the committee was a Professor Reid, who had written the article on boundary walls for "The Laws of Scotland Stair Memorial Encyclopaedia". In that article, he stated that the law was clear and that the ad medium filum approach was correct. As my hon. Friend the Minister should know, the Stair encyclopaedia is treated as a definitive statement of the law. It was thus irresponsible of Professor Reid to publish such an article while the SLC was considering the matter.
The second new member of the committee was Lord Gill, who was at the time a judge in the Court of Session. It would be astonishing if he were to find that his colleagues were in disarray on the matter. It appears that there are clear conflicts of interest in both cases and that both men should not have taken their places on the committee as they could not approach the issue with an open mind.
Last year, the SLC issued a short, summarised report of four pages. A longer report was impossible as the SLC would have had to deal with Mr. Thom's objections, showing the deficiencies of the ad medium filum solution. The original commission put the matter out to consultation and received an informative range of replies. However, the new commission ignored those responses which did not agree with its own predetermined position. The commission claimed that the balance of legal opinion favoured the ad medium filum approach.
1039 The majority of all opinion—and, crucially, the majority of the construction professions such as architects and surveyors—favoured common property. That view was ignored by the SLC, as it was not what it wished to hear. When the inevitably biased opinion of the Court of Session and the support for the court from academic sources—who partially make their living from slavishly following the court and writing about it—are stripped out, the decisive balance of legal opinion is in favour of common property.
The vast majority of opinion stated that the report should include fences. No mention of fences was made in the report, as it is impossible to consider fences and maintain the desired approach. Instead, the SLC has used the responses selectively to justify a conclusion that it has already arrived at. It has failed to engage in genuine consultation. The SLC believes that the law is now settled, and that the absence of further cases shows that. Mr. Thom has demonstrated that the law is not settled, and has submitted 16 different cases where the ad medium filum approach is inoperable. These have not been refuted by the SLC.
It is my belief that so few cases come to court because the public have a great deal more sense than lawyers, and realise that they are both responsible for boundary walls. As was indicated, the original commission refused the invitation to conduct site visits as it was convinced by Mr. Thom's arguments. The present commission has refused a similar opportunity to examine the situation at all. As the SLC concedes, the law rests on the decision in Thom v. Hetherington, although it admits on page 3 of the report that common property is more suitable for fences and thin walls.
Following representations to my hon. Friend the Member for Central Fife (Mr. McLeish)—a Scottish Office Minister at the time—it was made clear that the Government accepted the SLC report, and that the SLC had considered the problem of single brick walls and fences, but had decided that there was no problem, as such divisions rarely form the actual boundary between two properties. That is blatantly not the case. Thousands of title deeds specify that property ends at the appropriate division, which is either a fence or a single brick wall. One such example was the wall in the case of Thom v. Hetherington.
According to the SLC, single brick walls such as that in Thom v. Hetherington are rarely found in the boundary. We know that to be untrue. It says also that for thin walls and fences, a common property approach is the best option. The wall in Thom v. Hetherington was just such a wall, and the commission has been forced to admit that its judgment was less than perfect. The inoperability of the law in such cases—which are becoming more common as modern dividing walls are often indivisible—creates difficulties for insurance companies, as they do not know what insurance to offer. The problem has again been ignored by the commission.
It also means that title deeds that state that a single brick wall or fence forms the boundary between two properties are invalid and, as ad medium filum cannot be applied to such divisions, it is completely unclear what the legal situation is in such a case—although the law is supposedly based on Thom v. Hetherington. It is disappointing that the Scottish Office legal department has concurred with the SLC's work and appears to be no more willing to deal with the difficulties.
1040 There is a clear failure of accountability in the SLC, whose standards as a public body on issues such as conflict of interest have been utterly ignored. This has led to an obviously flawed decision, which the Scottish Office and the SLC still support, despite the fact that the flaws have been pointed out. Neither the commission nor the Scottish Office is willing to answer queries about the report, leading to the obvious impression that they have something to hide.
Mr. Thom believes that the manner in which the commission has behaved is fundamentally dishonest. He feels that the commission and the Scottish Office have deliberately refused to deal with the matter on its merits. I would therefore ask the Minister to initiate a full inquiry into the way in which the matter has been handled. Clearly, throughout the case the SLC has not acted in the way in which a public body should.
Through its actions, and those of the Scottish Office, the commission has rendered itself effectively unaccountable. I would ask the Minister to look at the legal situation surrounding boundary walls and to make up his own mind on the basis of the evidence, instead of accepting the discredited report.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. Calum Macdonald)
I am grateful to my hon. Friend the Member for Cunninghame, South (Mr. Donohoe) for raising the issue of the ownership of boundary walls in Scotland. I am conscious that this is an issue which his constituent, Mr. Thom—and, indeed, my hon. Friend himself—has pursued over a number of years with great energy and application. Mr. Thom succeeded in having the matter considered by the Scottish Law Commission, and the judgment in Mr. Thom's original case stands as the modem authority in this area of law.
As my hon. Friend is aware, neither the court nor the Scottish Law Commission has been persuaded of the need to reform this area of law. Ministers have accepted the conclusions of the Scottish Law Commission report, which was presented to the House in March 1998. I appreciate that my hon. Friend and his constituent continue to disagree with those conclusions, but this matter has received the fullest consideration.
As my hon. Friend has explained, this issue came up as a result of a case brought in the Court of Session by his constituent, Mr. Thom. Mr. Thom objected to a fence that was erected by his neighbour and attached to the boundary wall between their properties. He was unsuccessful in that litigation. Put briefly, the court took the view that such walls are owned by each neighbour individually up to the centre line, and each may do as he or she pleases with his or her own half of the wall, so long as the integrity of the wall is not damaged. In Mr. Thom's case, the court did not accept that his neighbour's action had in fact damaged the structure of the wall. If it had, it would have been open to the court to order redress.
Mr. Thom took the view that the court, in the person of Lord Jauncey, had got its law wrong, and that boundary walls were more properly considered as belonging collectively to both parties. There seems to have been some discussion in the course of the case as to the proper terminology for these two views, and the court ultimately adopted the term "mutual property" for the idea of individual ownership up to the middle line, but with a shared interest in the integrity of the wall, and "common property" for the collective ownership model.
1041 Mr. Thom, with admirable persistence, and with the very proper and energetic assistance of my hon. Friend, has continued to argue that the common ownership approach is preferable, raising the matter regularly with Ministers of both the previous and the present Government. As a consequence of his representations, the Scottish Law Commission agreed to consider that area of law, complementing a much larger review of the law of the tenement.
In a 1990 discussion paper on the law of the tenement, the commission said that it was minded to recommend that shared walls between buildings should be commonly owned, but with special provision for the right to make minor alterations so that neighbours would not have to get agreement before putting up shelves or perhaps even hanging a picture. Following that train of thought, in 1992 it published a consultation paper that tended to favour a similar common ownership approach to boundary walls, but in both areas of law it concluded, after consultation, that the mutual ownership model was to be preferred.
The commission published its final report on boundary walls in March 1998, taking the view that the current common law of Scotland on the matter is clear and not in need of statutory restatement, and that, as a matter of legal policy, the mutual ownership model is not in need of change. It accepted that the approach is not without some drawbacks, but concluded that those were fewer than in the alternative approach.
Ministers considered and accepted the commission's recommendations. Following further representations from my hon. Friend, a meeting was held at which he and Mr. Thom were able to press their points with the Minister who was then responsible and with Scottish Office officials. The Minister considered the detailed representations presented at that meeting, but saw no reason to depart from the decision to accept the commission's recommendations.
Let me deal briefly with the arguments that persuaded the commission that a change in the law was not needed. The existing approach of mutual ownership gives both parties the maximum freedom to make reasonable use of the wall bounding their property, as long as they do not disturb the stability of the wall as a whole. The owner of a property could, for example, fix a trellis or other support for climbing plants to the garden wall without having to seek his neighbour's permission as co-owner. At the same time, the neighbour's interests in the wall are safeguarded, as the owner is under a restraint preventing him or her from damaging the stability of the wall, and under a positive obligation to maintain his or her own half of the wall.
The commission recognised that no solution is perfect and that the existing law is less readily applicable to thin walls or fences. The report fairly draws attention to that and to the fact that the final views diverge somewhat from those in the discussion paper, primarily because of the obvious difficulties involved when, for example, two neighbours are each theoretically obliged to maintain one half of a wire fence, or of a single thickness of brick, up to the middle line. In practice, that simply means that maintenance of the whole is a common responsibility.
The commission, in evaluating the response to its consultation, had to weigh up two conflicting bodies of opinion. The construction industry favoured the common 1042 ownership approach, but the legal profession, including the judges of the Court of Session, considered that the existing law had been helpfully clarified in the case of Thom v. Hetherington and needed no change. The commission was not made directly aware of any significant practical difficulties with the present law other than those raised by Mr. Thom in his submissions. In other words, no one else was pursuing the matter with either the commission or the Scottish Office.
It is a further advantage of the existing approach that the law on boundary walls is consistent with that proposed by the commission for adjoining walls between dwellings. In reviewing the law of the tenement, it concluded that individual ownership up to the halfway point, constrained by obligations to one's neighbours, was the best solution, and that is reflected in its report on the law of the tenement laid before the House in March 1998.
I know that my hon. Friend's constituent has some worries about the Scottish Law Commission and the way in which it went about its task. It may be helpful for me to respond to the points that he made. The commission is an independent body which exists to advise the Government on the need for, and context of, reform in the law of Scotland. It brings together considerable expertise in the law, from both practice and academic lawyers, and is chaired by a Court of Session judge, currently Lord Gill.
The Lord Advocate appoints to the commission leading experts in particular fields. Those commissioners are experts precisely because they have studied and written extensively on the areas of law that they have to address. Mr. Thom's concern about conflict of interest or lack of impartiality is misplaced because the commission is not that kind of body: it is a body of experts, not a neutral panel of adjudicators.
The commission is not in any sense a court or tribunal. In reaching its conclusions it consults widely, as it did in this instance, and the contributions of those who respond are greatly valued, but it is the content of the arguments that carries weight; the commission does not operate by counting votes, one way or the other, from those consulted.
Given Mr. Thom's concerns, as reported by my hon. Friend, it would be opportune to make it clear that, in every report produced by the commission, including the one on boundary walls, the recommendations are arrived at after detailed debate among all its members. The conclusions and recommendations do not represent the views of one commissioner or group of commissioners. They are presented to Ministers and to Parliament as the recommendations of the commission itself. We are perfectly satisfied that that process was followed for the boundary walls report, as for others. I emphasise how highly Ministers value the work done by the commission.
My hon. Friend has also expressed concern about the time taken by the commission to consider the issue. It is important to remember that during that period it addressed a range of pressing issues and produced a number of weighty reports. The issue was not accorded priority over other issues then being considered. That was explained in correspondence to my hon. Friend and to Mr. Thom. When Lord Gill took over as chairman there was a review of the work in hand and the matter of boundary walls was accorded greater priority. This led to the report being published in March 1998.
1043 The Government are free to accept or reject the commission's recommendations in the light of such other advice as may be available. In this case, we have received no representations, other than from Mr. Thom, against the commission's approach, so we have accepted its report. Nevertheless, as my hon. Friend knows, the matter is one which the Scottish Parliament could reopen at some time in the future were it minded to do so. I suspect, however, that for the issue to become a matter of priority on the Parliament's agenda, concern would have to be expressed by others, such as the construction or insurance industries.
I hope that I have been helpful to my hon. Friend. I know that his constituent may be disappointed, but I do not think that it would be proper to reopen the issue 1044 at this time. I admire the way in which my hon. Friend has taken up the issue and the persistence of his constituent.
§ It being before Two o'clock, the motion for the Adjournment of the House lapsed, without Question put.
§ Sitting suspended, pursuant to Standing Order No. 10 (Wednesday sittings), till half-past Two o'clock.