Court of Session finds for Crown Estates over Rothesay Moorings group

In what became a noteworthy challenge to the ownership of the Crown Estate over the sea bed off Rothesay, Lord Uist, sitting at the Edinburgh Court of Session has finally delivered the judgment everyone knew he would.

He has found in favour of the Crown Estate Commissioners – even though in a recent exclusive, The Herald newspaper reported that the Commissioners themselves admitted to a House of Commons Committee that, in fact, they own nothing but simply manage.

The dispute was between an independent minded group of boat owners in Bute who had for several years refused to pay mooring dues to the Crown Estate Commissioners, a fee exacted on the basis of the – now self-denied – ownership of the sea bed.

The boat owners case was that the import of two royal charters granted to Rothesay on the Isle of Bute was that Rothesay owned its own sea bed.

The two Royal Charters were from:

• King Robert III in 1400
• King James VI in 1584

The charters created Rothesay a Royal Burgh and bequeathed it specific port-related freedoms – ‘ a free port and harbour for ships in the bay and station of the said port of Rothesay and Kyles of Bute, the stations of Cumbrae, Fairly and Holy Isle and all others within the foresaid bounds’.

This has always seemed like a case worth making.

However, the establishment, ,like all tribes of blood or convenience, holds together under challenge and Lord Uist’s judgment was a betting certainty.

He has said, noting that the successor of the Royal Burgh of Rothesay is Argyll and Bute Council: ‘In my judgment the royal charters in this case, properly construed, did not grant the property in the sea bed to the Burgh’.

In our judgment Lord Uist has not defensibly established the basis of his judgment. What is to be properly construed from the expression ‘properly construed?’ Who says?

Reading the full judgment is an interesting exercise. Much of it is a cut and paste job recounting the positions put and the evidence given by the various counsel and contributors.

Having just re-viewed some episodes of Yes Minister, the mindset betrayed in the teasing out of an argument to favour the petitioners -  the Crown Estate Commissioners, is numbingly familiar.

In fact a case of equal strength and weakness could be made out in favour of either side.

There is a lot of pseudo historical research – designed to impress and influence the uninitiated but little more than educated guesswork – on what would have been in the minds of the Kings and their advisers when the two royal charters were drawn up, given the society of the tine.

This is cod history and certainly has no place as the basis for a judgment in a court of law. Why  not simply call in the ubiquitous television psychologist Dr Cynthia McVey and let her pronounce?

What next?

An imaginative response from the Rothesay Bay – or Kames Bay – boat owners would be to learn the skills of rafting up that Maersk employs in Loch Striven with its laid up container ships.

As a maritime nation, British law has long conferred the universal right of free navigation and anchorage on all sailors and shipping.

The Loch Striven ships are not moored  but strategically anchored  north and south, and lashed to each other by warps and springs. It cannot be beyond human ingenuity for the boat owners to engineer the last laugh.

The Crown Estate and its swingeing ownership of the sea bed is out of place in the 21st century and cannot be – should not be – long for this world.

The photograph above is by copyright holder William Craig and shows Rothesay Bay and Pier, with its inexplicable red roof dominating the shoreline. (At least it’s a sort of navigation mark for boats.) The photograph is reproduced here under the Creative Commons licence.