You are absolutely right. Explaining those things to anybody who is not deeply steeped in common good traditions is slightly difficult.
Essentially, not all common good property can be sold. That has always been the case. Historically, the courts have held that there has always been a class of common good property that cannot be disposed of. One such class of property is things that were necessary for the administration of the burgh, such as the burgh chambers and the jail. I am going back through historic cases now.
The other main area is where there was a dedication in the title. Philanthropists in the 19th and 20th centuries gave land to towns, but on the condition that it was to be used for ever for the town, usually for a recreational purpose.
A third category relates to the burgh having dedicated an area, usually to recreational purposes. We are usually talking about land in that particular situation.
I appreciate that that is quite a long explanation to translate into legislation, but it would not be beyond the wit of the legislators to create a definition. The key issue is that those categories of property could be sold with the consent of the court. Perhaps the question to be asked is whether the right place to make that decision is the sheriff court or the Court of Session, but at least if the case goes before a court, the judge will weigh up the benefits and disbenefits of the sale.
Those properties could be sold under the 1973 act in certain situations. As a result of the Portobello case, in which the local authority wanted to use the common good property for another public purpose, there is now clear case law that says that it could not do that. There is an absolute brick wall against local authorities doing that in any situation other than by taking legislation through the Parliament. One might wonder whether that is the best use of the Parliament’s time.
It would be tricky to define such categories of common good because, certainly in the case of old burgh chambers, for instance, the question whether they are still inalienable changes over time. I do not think that it would be impossible to do that, however. Indeed, it would be helpful to have definitions set down. Rather than having them in a string of 19th and 20th century cases and obscure law books, it would be better to have those set down in legislation that everybody can access on the internet. That would never be a perfect solution, but it would be a better solution than what we have at the moment.