Scots Law at the Association for Law, Property and Society Conference 2016

This is a signpost blog, to highlight a forthcoming event about [Scots] property law. The event is taking place on 20-21 May 2016 in Belfast and the Scottish element is detailed in this blog by Dr. Jill Robbie of the University of Glasgow. The ALPS page for the event is here.

No prizes for guessing what I will be speaking about. With great originality, I will be addressing land reform and specifically the statutory regimes around community ownership, drawing on a presentation I gave in Scotland last June to a non-legal audience (that June event being digested here). In comparison with that event, I will need to: a) increase the law/theory content; and b) assume less background knowledge in the audience about what has been happening on the ground in Scotland.

Five other speakers will also be trying to shine a light on what exactly is happening to the regulation of property in Scots law, in a way that will hopefully be useful to an international audience. Hopefully that audience will also provide some useful insight of their own, which the Scottish-based contributors will then be able to take back across the Irish Sea after the event.

A blog about this event may well follow, so watch this space.

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Land Reform (Scotland) Bill – Scottish Government response to RACCE Committee

The Scottish Government has just published its response to the Stage 1 Report (PDF) to the Stage 1 Report of the Rural Affairs, Climate Change and Environment Committee on the Land Reform (Scotland) Bill. This gives a fair idea of the Government’s direction of travel for any amendments to the Bill. Bearing in mind the parliamentary maths at Holyrood, and assuming the SNP MSPs hold tight on land reform policy, this in turn gives a fair idea of how the Bill will ultimately shape up.

Some instant thoughts from me follow.

As already indicated in the Chamber at Holyrood (see the exchange between Angus MacDonald and Aileen McLeod in the Official Report and on video (beginning 57 minutes in)) the Government has taken on the recommendation that one of the Commissioners of the proposed Scottish Land Commission has a knowledge of Scots Gaelic (see paragraphs 76-78 of the response). As people who follow this blog will know, this was one of the two recommendations that I made that appeared in the RACCE Committee report.

The second of those recommendations has not received such an enthusiastic response, with the Government not committing to any amendment that might lead to Local Access Forums having a dispute resolution role for access taker disputes (see paragraphs 236-240).

Moving the focus from me to the recommendations of my academic lawyer colleagues at the University of Glasgow, the concerns raised by Jill Robbie and others on the structure of the Bill are not shared by Government. (See in particular paragraph 19: “We do not consider that any significant change is needed to the structure of the Bill, and we consider that the time allocated for amending the Bill at Stages 2 & 3 would be better devoted to strengthening the substance of the provisions in the Bill.”)

A recurring point of discussion in the current land reform debate is that of transparency of landownership. Of interest in this most recent publication is the fact that the Government holds the line that restricting land ownership to natural persons or EU entities “would be outwith the competence of the Scottish Parliament” (at paragraph 124). There is a nice debate to be had around that point, and you can see some debate at paragraphs 125-126. I would like to see more legal discussion on the point, but I appreciate that is maybe just me. Those interested in a bit more law can find some here, in the shape of a response to an earlier consultation by the law firm Balfour+Manson LLP.

The Government response also highlights some concerns about the European Convention on Human Rights and its framework for a home and private/family life. Like EU law, that is another matter that constrains Holyrood’s law-making power. Clearly, there are issues to do with the unintended consequences a commitment to transparency would bring, particularly in terms of personal data being made available. One thought about the right to a home springs to mind: might there be scope for two registration routes to the Land Register, depending on whether you are applying to register a family home or not? What I am imagining is a situation where someone who applies to register land is asked in the application documentation a question like “is this land to be your home?” Those answering “no” could then be subject to appropriate follow-on questions. This is not a fully-formed idea and there would clearly be discussion about what a “home” is, but this might provide a route for assuaging any Article 8 ECHR concerns by avoiding the need for a big disclosure when you are demonstrably acquiring a family home.

Two final thoughts. First, it now seems that the community right to buy to further sustainable development will not be subject to major revision from the form in which it appears in the Bill: for example, there will be no Government move towards allowing a community of interest (rather than a community of place) to benefit from this right (paragraph 173). Second, the RACCE Committee asked for more detail and consideration in relation to Part 6 of the Bill, entitled “Entry in valuation roll of shootings and deer forests”. At paragraph 190, the Governement “welcomes the opportunity to reiterate and expand upon points made in our evidence to the Committee to date and in the accompanying documents to the Bill.” It then proceeds to do so in paragraphs 191-206. From this level of detail, I think it is fair to deduce that the Government is digging its heels in rather than about-turning on the issue of sporting rates reform.

What now? We wait to see what amendments are actually brought forward. Calum MacLeod published a blog about that.

Posted in Land Reform | Tagged , , , | 1 Comment

My 2015 in Review

Another year, another reflective blog. I do plan to keep this post short though, as 2015 has – on one analysis – been gloriously uneventful. My Hogmanay 2013 blog was written in very different circumstances and with just a few health challenges to negotiate, while 2014 was a raw reflection on health matters, and one or two other things like that year’s indyref. 2015 has been comparatively tame. In fact, I toyed with the idea of making this a four word blog: “Nae cancer, nae bad.”

That would have been true (for me, at least), but then again the odd trip to a hospital (for ongoing check-ups, or to visit others affected by something) reminds you: a) just how fragile things can be; and b) that crowing about your own relatively healthy situation might hammer home another person’s not so healthy situation. So I will resist the urge to crow, but I will direct you to my one piece of cancer literature this year if you want any further insight.

What else did I get up to in 2015? I was involved in a number of law/land reform/law clinic type events, which are Storified as follows:

Professor David Carey Miller’s conference at Aberdeen;

The Scotsman’s “Scotland’s Land” conference in Edinburgh;

The Scottish University Law Clinic Network 2015 Conference (and see the related note in the Journal of the Law Society of Scotland); and

A Scottish Human Rights Commission event;

I was also a participant in the Brodies Environmental Law Lecture at the University of Edinburgh, which I hope to spin out into a paper in a law journal (I am patiently waiting for the finalised text of the new Scottish land reform legislation before I finalise that). The Carey Miller conference paper should also become a chapter in a collection in due course.

Although not featured in a Storify or similar, I was also involved in a land reform symposium at Aberdeen (a few tweets were sent from the @RuralLaw account, if you are interested) and hosted the 2015 Scottish Client Consultation Competition for DPLP students. I also had a few press appearances, talking about either Nazis (no, I am not quite sure how that happened either), raising money for Cancer Research UK, or land reform (in English and Gaelic). I suspect there will be plenty more to write about on the latter in 2016.

That mention of Gaelic leads on to some chat about (rather than in) the Gaelic language, as per this Storify. I will write no more about that here, other than to document my hope that I will not need to stave off further anti-Gaelic weirdness too often in 2016 or beyond.

And that leaves one more matter. How could I fail to mention the Highland Titles thing? That blew up entirely unexpectedly in February, but became an internet sensation that was both comic and entirely serious. Links to the relevant material, along with my other popular blogs, are provided below.

STAT ATTACK

For those interested, my top five posts of 2015 (excluding the blog’s churning home page) were:

Highland Titles Scam (the related Storify had over 18,000 views). My 3rd most viewed post was on the same issue: A Square Foot of Old Scotland: Ownership of Souvenir Plots. That blog also features a link to a paper co-authored with Dr. Jill Robbie of the University of Glasgow. I will treat the two of them as one overall best post.

My 2nd top post was Scots Gaelic, Scots law and Scots attitudes.

In 5th place, a blog on the Land Reform (Scotland) Bill being introduced to Holyrood

Also, an honourable mention for the blog that just missed the top 5: Wild camping in Edinburgh: some thoughts on the #indycamp. Tangentially, it might be noted that Edinburgh has provided another very interesting access rights cases study recently, per my tweets about Calton Hill

What next?

I concluded my last reflective blog thus: “2015 will be a year like no other too. Personally, I hope it will be rather uneventful, in the best possible way.” Yes, 2015 could perhaps have been more exciting, but I am absolutely fine with that. At some point when you have been affected by illness, your focus moves from surviving to living. So I will try to live it up when I can, whilst being ever so grateful for the mundanity a relatively healthy life brings. Here’s to 2016.

Slàinte.

UPDATE (1 January 2016)

I forgot to mention how much I (and all my lovely donors) raised for Cancer Research UK in running the London Marathon: pre-tax, I cleared £7K, and with Gift Aid I think it came in at £8,395.70. So that was nice. The marathon itself was pretty cool, but tough, as detailed in this blog.

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Remember Mary Barbour (in Kilbarchan)

This is a short and occasionally personal post on a land reform matter that partly relates to the place where I grew up, the Renfrewshire village of Kilbarchan.

Two pictures will set the scene.

This cairn was recently unveiled at New Street, Kilbarchan, opposite the Glenleven Inn. The plaque is gloriously succinct. To add a bit more verbiage, Mary Barbour had a key role in the Glasgow Rent Strikes of 1915. This is explained on the Remember Mary Barbour blog.

In terms of why I am interested in land reform, I would not normally place my Kilbarchan upbringing as the main catalyst for any interest. Sure, I was aware of Kilbarchan’s radical weaving tradition, but I have actually mentioned my growing up in a suburban Renfrewshire cul-de-sac as a by-the-wayside remark to forestall any lazy critique of points I raise as being from someone: a) wanting to grab some land for himself; or b) defending his rights in the lovely land that he already owns. (Which is not to say the likes of tenant farmers, landowners or community representatives cannot make valid points. They can and very often do. But I digress.)

For any personal interest in land reform, that probably stems from my family’s occasional transhumance. Not proper transhumance, of course, but in my childhood and adolescence most of my Easter and summer holidays were spent in the Hebrides, staying with my mother’s side of the family. The land question just seems more of a thing in the Highlands and Islands. There may be many reasons for that, but it strikes me that one reason is that no-one told me about people like Mary Barbour or events like the Glasgow Rent Strikes whilst I was growing up and attending school in Kilbarchan.

Land reform is not Highland. Land reform is not rural. Nineteenth century action against rack-renting in what are now called the Crofting Counties is as much a land issue as twentieth century action against rent-increases in Glasgow.

As for the relevance of any of this to the present day, the contemporary land reform debate should not be driven by history, but it can be informed by it. If a few children growing up in Kilbarchan, or perhaps Govan, ask a question or two about Mary Barbour because of a memorial, that would be a very welcome thing indeed.

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RACCE Committee Stage 1 Report on the Land Reform Bill

First, an apology to any land reform fans out there. I have been a bit remiss in my blogging and this is my first chance to offer a select few words on the Stage 1 Report of the Rural Affairs, Climate Change and Environment Committee as a whole. I did manage to offer more than a few words (in Gaelic) on one specific Committee proposal to do with the promised Scottish Land Commission, but sitting down to give a proper overview of the report has been beyond me owing to matters that have been long in the diary such as: invigilation and marking of student exams; attendance at a recent Scottish Human Rights Commission event (Storified by me here) in Edinburgh; participation in a Glasgow Forum for Scots Law discussion; and indeed the odd social engagement.

Enough about me, I can tell that you all want to hear about land reform. Here are some quick thoughts on the Committee’s output. I offer these in a particular order, and that order is a selfish one. The first two thoughts relate specifically to things I recommended in evidence and have been taken forward by the Committee. The remainder are things I am interested in and I feel I can offer some useful thoughts on before Holyrood debates matters on Wednesday afternoon. There are plenty other matters in the Stage 1 Report that are very interesting indeed and my glossing over of them should not be read into too much.

It might also be useful to note at the outset that the accompanying press release noted that “The Scottish Government’s Land Reform Bill requires strengthening in key areas to deliver on its radical ambitions“. That gives you an idea of the Committee’s overall thinking.

The Scottish Land Commission

As noted previously on this blog, in Gaelic and in English, I recommended that there should be a specific commitment to the Gaelic language in the criteria for appointment of Scottish Land Commissioners. This has been adopted by the Committee (at paragraph 159) and I hope Parliament acts upon this. Although I did not mention this in my initial blog (or indeed my submission to the Committee) a thought that occurred to me latterly is that involving someone with knowledge of Gaelic might just introduce perspectives to land policy that have thus far been excluded. I am not saying Gaels have been excluded from important policy shaping positions in modern Scotland, but actively including them might make for a new dynamic. If reform is indeed about changing things, then that new dynamic would seem to be a logical introduction.

That leads on to the Committee’s nearby observation about land management experience, found in paragraphs 157-158. They observe there is “merit in ensuring the Commissioners collectively have some general land management experience and/or expertise“. This is fine, subject to the rather glaring caveat that the people who have land management experience and/or expertise at the moment tend to be the people who have access to land at the moment. If those people then get the chance to shape policy, cynics might query whether this is reform at all.

Of course, this need not be the case of people who know how to manage land: someone with a wealth of experience of managing land in Ireland, New Zealand, Canada or Norway would not necessarily fall into a handy caricature of Scottish old money. Overall, the recommendation does seem perfectly sensible – absent proper guidance, pejorative phrases about monkeys taking over the zoo spring to mind. Then again, if you want a commission to look into reforming your zoo, it might not be sensible to overload the Zoo Commission with traditionalist zookeepers.

Access Rights

The Committee “recommends that the Scottish Government considers the merits of expanding the role of Local Access Forums to allow them to deal with minor access rights disputes.” (Paragraph 399.) For me, this chimes satisfyingly with an earlier blog. Again, I hope Parliament now takes this forward, but I will quickly clarify that I do not imagine Local Access Forums in any way usurping the already established role of Sheriff Courts. Rather, I imagine the local Local Access Forum can be a first, cheap and quick port of call, with an appeal to the Sheriff possible to deal with any thorny issues.

Sustainable Development

Whilst we are on the subject of thorny issues, the Committee described (at paragraph 81) the issue of whether a definition of sustainable development should appear in the Bill as “thorny”. Eventually, this was noted (at paragraph 271):

The Committee is satisfied that there is a clearly understood definition of the term sustainable development, both as set out in other legislation, and in the Policy Memorandum to the Bill.

I have some sympathy with this. I am increasingly of the view that it is now too late to try to define “sustainable development” in a Scottish land reform statute, especially as you might need to reverse engineer that which has gone before (particularly the Land Reform (Scotland) Act 2003). This is one of the few areas where I adopted a different position to Dr. Jill Robbie and her colleagues at Glasgow. The Committee drew succour from the Pairc decision in the Court of Session in coming to its conclusion. I agree with it.

Drafting and Delegated Powers

Where I do agree wholeheartedly with Jill is that there are issues in the comprehensibility and presentation of the Bill. Coupled with the fact that much legislation seems to be saved for a later date (i.e. to be covered by later regulations), that can make it difficult to comment on and understand what the legal landscape after any new Land Reform (Scotland) Act will look like. The Committee acknowledged these issues and recommended the Bill be amended to ensure any particularly important secondary legislation that follows is properly scrutinised by Parliament (paragraph 77).

All that said, I have a great deal of sympathy with the people who drafted this legislation under a great deal of time pressure, especially Part 10 on agricultural holdings. I will continue to have sympathy with them when they try to get any amendments to the Bill processed before Holyrood closes at the end of March. In fact, that time pressure makes me wonder whether there is time for the limited-competence Scottish Parliament to make any radical change to this Bill that can be confidently within its limited competence: that being a point I alluded to in this blog, written in the build-up to the Committee Report. (If there is indeed not enough time, it may be the case some of the points that cannot be addressed by legislation in this Holyrood term will manifest in future manifestos of the various Scottish political parties.)

Another point I alluded to in that blog is that the recommendations of the Committee will be crucial for this Bill. One area where the Committee has strongly recommended something is in relation to transparency, which is the final thing I will consider.

Transparency of land ownership

Of all the issues that I think will need to be considered very carefully by Holyrood (well, this and ALL of agricultural holdings, which I am not looking at in this blog), transparency is crucial. This is what was said of the current Part 3, with its right to request information (at paragraphs 219-220):

…the Committee is of the view that Part 3 of the Bill is not likely to achieve all of its objectives as it stands and requires amendment. The Committee does not recommend deleting sections 35 and 36 in their entirety, which was suggested by some. Rather, as outlined above, the Committee recommends that those sections be strengthened, and become part of a suite of
measures.

Given that the provisions are not likely to go far enough in delivering the desired increased transparency about those who own, control and benefit from the land, and following all of the evidence heard and considered, the Committee recommends that the Scottish Government gives consideration to the following suggestions for amending the Bill, requiring—

– those who wish to buy land and register title in Scotland to be
registered EU entities, and requiring current non-EU registered
owners to register within 5 years of the commencement of the provision;
– those who wish to buy land and register title in Scotland to provide a named contact point in Scotland;
– those who wish to buy land and register title in Scotland to clearly identify those who will control the land and those who may benefit from that ownership and control;
– any other appropriate information that could reasonably be needed as part of the registration process and which would improve transparency and accountability.

That the Committee has come out so strongly on this is striking. It follows on from the Land Reform Review Group Final Report. Will the Parliament now follow the LRRG Final Report, the Committee Stage 1 Report, and the weight of evidence that was submitted in response to the recent consultation on land reform?

What now?

Tune in to Parliament TV on Wednesday at approximately 15:00. As it happens, I might miss it, as the undergraduate Law of Property exam is 12:00-14:00 that day and I will probably still be caught up in the post admin fun at 15:00.

You may be reassured to hear that I am not assessing these second year undergraduates on the terms of the Land Reform Bill. Believe it or not, I am not that sadistic. (And if any of my second years are reading this, good luck, but should you not be studying for something that is likely to be in the exam?)

Finally, you can find further analysis of the RACCE Committee report over at Calum MacLeod’s blog and at the Scottish Land & Estates website.

Posted in Land Reform, Property, Uncategorized | Tagged , , , , , , | 4 Comments

Bu chòir Bile Ath-Leasachaidh an Fhearainn atharrachadh airson Coimiseanair Gàidhlig

Bha mi air Radio nan Gàidheal an-diugh a’ bruidhinn mu dheidhinn Coimisean Fearainn na h-Alba (agus seo link eile).

Dè thuirt mi?

Mar a sgrìobh mi anns a’ bhlog seo, a-rèir Achd na Gàidhlig (Alba) 2005, gabhaidh argamaid a dhèanamh gum bu chòir co-dhiù tuigsinn air a’ Ghàidhlig a bhith am measg luchd-obrach a’ Choimisein Fearainn na h-Alba agus gu bheil feum air a leithid anns an reachdas fhèin. ‘S dòcha gum b’ urrainnear a ràdh nach eil feum air dealas sònraichte dhan Ghàidhlig anns an reachdas seo ri linn ‘s gu bheil structar leasachaidh farsainn airson a’ Ghàidhlig anns an latha a th’ ann. Ach bhiodh dealas poblaich don chànan agus an coimhearsnachdan a tha ga cleachdadh, a bharrachd air leantainn riaghlaidhean croitearachd agus Cùirt an Fhearainn an Alba, gu math freagarrach agus feumail.

’S dòcha gun gabhadh tuigsinn air ainmean àite Gàidhlig a sgaoileadh agus mothachadh air eachdraidh an fhearainn is mar a bha e air a chleachdadh, so sin buannachd eile.

Tha ath-leasachadh an còmhnaidh mu dheidhinn rudan atharrachadh. Ged nach eil luchd labhairt air a bhith toirmisgte bho dhreuchdan oifigeil fearainn, tha a’ Ghàidhlig ‘s dòcha le cliù cànan croitearachd no clas-obrach. Mar sin chan eil Gàidheil an-còmhnaidh air a bhith ri làimh gus buaidh a thoirt air poileasaidhean fearainn. Cuiridh seo sradag ur ri poileasaidh fearainn agus tha seo co-chòrdail ri bun-bheachd ath-leasachadh.

[Ceist] Tha cuid air draghan a nochdadh gum faodadh seo cais a chuir air daoine ann am pàirtean de dh’ Alba far a bheil a faireachdainn nach eil dìleab a Ghàidhlig cho làidir. Saoil a bheil puing aca?

Tha sin glè mhath, ach cha bu chòir argamaidean airson Albais – no rud sam bith eile – tionndaidh gu argamaidean an aghaidh a’ Ghàidhlig. Co-dhiù fad iomadh bliadhna tha riatanasan reachdail air a bhith ann gu feum neach-labhairt Gàidhlig a bhith air buidhnean rianachd croitearachd agus Cùirt an Fhearainn an Alba. Mar sin, mar a thuirt mi, tha coltas samhlachais eadar buidhnean fearainn Albannaich eile agus Coimisean Fearainn na h-Alba ùr sam bith.

[Ceist] Dh’aontaich a chomataidh ris a’ mholadh agad ach dè cho dòchasach sa tha thu gum bi e a nochdadh ann am Bile ath leasachaidh an Fhearainn aig a cheann thall?

Chanainn gu bheil cothrom ann – tha a’ Mhinistear, Aileen NicLeòid, air fianais a thoirt seachad don chomataidh Comataidh Cùisean Dùthchail, Atharrachadh Clìomaid agus an Àrainneachd ann an Dùn Phrìs is Gall-Ghàidhealaibh agus coltas gu bheil i den bheachd gu bheil dreachdadh na Bile ceart gu leòr (Mar a sgrìobh mi anns a’ bhlog seo). Thuirt i:

The members of the Scottish land commission will need to have a broad range of expertise and the bill requires the Scottish ministers to have regard to the desirability of the commission having expertise or experience in land reform; law; finance; economic issues; planning and development; and environmental issues. That is a non-exhaustive list, and nothing in the bill bars ministers from taking into consideration other areas of expertise when they appoint land commissioners or the tenant farming commissioner through the public appointments process.

Once the Scottish land commission is up and running, it will have regard to the national Gaelic language plan, and it may wish to appoint a Gaelic speaker as a member of staff.

Nis, tha Comataidh nan Cùisean Dùthchail air a ràdh (aig paragraf 159):

The Committee notes the statutory requirement for at least one member of both the Scottish Land Court and the Crofting Commission to be a Gaelic speaker and believes it is essential to ensure that the Gaelic language be given equal status in law. The Committee therefore recommends that the Bill be amended to require at least one member of the Scottish Land Commission to be a Gaelic speaker, as well as having the other relevant skills and qualifications.

Tha sin glè chudromach. Às aonais seo bha nas lugha cothrom ann gun atharrachadh a’ Phàrlamaid e. Chan eil dearbhadh ann gun atharraicheadh iad e co-dhiù, ach tha barrachd chothrom ann. Feumaidh sinn fuireach gu Ìre 2 agus Ìre 3 den bhile a-nis.

ENGLISH SUMMARY

This post builds on my previous blogs about the proposed Scottish Land Commission following on from the Rural Affairs, Climate Change and Environment Committee Report. That Report (at paragraph 159) took forward my suggestion that the Land Reform Bill be amended to expressly provide for a Gaelic speaking member. My (non-exhaustive) points for this recommendation can be summarised as follows:

  • consistency with crofting legislation and the Scottish Land Court framework;
  • the (admittedly slight) benefit of an ability to unlock place names and as such historic uses of land;
  • the inclusion of a views from a community who might not always have been able to shape land policy to date (which is not to say Gaels have been expressly excluded in the past, but Gaelic has been something of a working class or crofting language and expressly including Gaelic in the Commission framework might make for a new dynamic and any new dynamic is consistent with the very idea of reform).

The post also considers a counter-argument about other (non-Gaelic speaking) areas of Scotland before speculating as to how likely it is that the Bill will be changed (answer: a bit more likely now that the Committee has reported, but Parliament has the final say).

Posted in Gaelic, Land Reform | Tagged , , | 2 Comments

Wild camping in Edinburgh: some thoughts on the #indycamp

In the days before I had my own blog, I contributed an article about wild camping in a city centre to a Scots legal website called The Firm Online. The Firm is decidedly not online at the moment (its old url takes you elsewhere), so I can’t find the post anywhere. My post related to the appearance of a camp in Glasgow’s George Square to coincide with the Occupy movement. The camp eventually moved to Kelvingrove (but not before very disturbing reports of a rape appeared in the press, the most recent news story I can find on the matter being here). There was also something of an off-shoot in Blythswood Square (more on that below).

As hinted in the BBC story about the camp flitting, there was some enforcement action prior to the flit. Some counter-arguments might have been raised to furnish the campers with a stateable case to remain, at least for a time. In Scots law the bare fact of possession of land gives the right not to be dispossessed without proper [court] process in most circumstances, but an owner of (say) a building would normally be able to get a squatter out pretty quickly in the local Sheriff Court. Where political demonstrations are concerned, there might have been a line that Articles 10 (Freedom of Expression) or 11 (Freedom of Assembly and Association) of the ECHR were engaged, subject of course to criminal law controls relating to public order or terrorism. I will say no more about public assembly and the regulation thereof here. Another potential argument based on statutory rights of access under the Land Reform (Scotland) Act 2003 could perhaps have been made. That statute allows everyone to be on land without the prior consent of a landowner, subject to certain exceptions based on the characteristics of the land in question or the conduct of the person taking access. No-one particularly ran with this at the time, except maybe me.

Why am I speaking about this now? Whilst Occupy Glasgow has gone, there is now a camp in Edinburgh. The “indycamp” has been set up in the shadow of Arthur’s Seat. It will apparently remain “until Scotland wins independence” (£). The Scottish Parliament is taking legal advice about this. Here, I offer some general legal analysis, in the form of pro bono blog, subject to two disclaimers. First, I am doing all of this from a desktop level, so if you have more information on the specific matter at hand do comment below. Second, please don’t take this as specific legal advice. It’s just another verbose guy shouting at the internet about an area of law that I find really interesting.

The Law

Part 1 of the Land Reform (Scotland) Act 2003 begins with the lofty statement that “Everyone has the statutory rights established by this Part of this Act”. It then details what the right of responsible access entails, namely the right to be on land for recreational purposes, relevant educational activities and to carry out an activity that can be undertaken “otherwise than commercially or for profit”. There is also a standalone right to cross land. Some of these activities might be relevant to the indycamp, others less so (the right to cross land being a particular irrelevance to those who are staying put).

Section 2 operates as a check on section 1, providing that access rights must be exercised responsibly. Guidance as to what is responsible is found in section 9, which lists seven conduct-based exceptions. Section 6(1) excludes some land from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land (such as a building, a reasonably sized garden next to a dwelling or where crops are growing).

What relevance might this have to the hitherto unknown pursuit of camping at Holyrood? As to how access rights might be exercised responsibly, wild camping (i.e. camping without landowner consent) is not excluded under s 9. Although not legally binding, the Scottish Outdoor Access Code certainly envisages wild camping as a legitimate recreational activity. There is similarly no problem with activities involving a number of people, provided that group is not collectively irresponsible or pays little heed to legitimate land management activities. The benign recreation of [urban] campers is therefore not struck at by s 9 unless another excluded course of conduct is operative (perhaps being on land in breach of an interdict or hunting (urban) foxes). This is all subject to the massive caveat that an activity will not be responsible if it interferes with other people’s rights, including rights they might have as (potential) access takers under the same statute. Everyone is allowed to enjoy land, remember. Stopping someone else using land indefinitely could accordingly be problematic. Plus, leaving a tent on the same spot for ages could leave an outline of etiolated grass on the ground, so a landowner might legitimately ask a camper to not camp in such a manner.

The question readers might be more concerned about relates to where access rights can be exercised. They are not restricted to rural or remote areas of Scotland. The wide scope of access rights was confirmed (if it was ever in doubt) in the case of Forbes v. Fife Council ((2009) S.L.T. 71), a dispute about a thoroughfare in Glenrothes. Unless the land in the shadow of the Scottish Parliament falls within a relevant section 6(1) exclusion, access rights are exercisable on it.

The Law in Action

Blythswood Square in Glasgow gives a great example of excluded land in action. The “frontagers” (that is to say, the owners of the buildings facing a square) often own gardens like this. This would be excluded in terms of section 6(1)(c). So camping here would not necessarily be allowed in terms of the access legislation.

Occupy

Oh.

Any right to camp on this area would not be in any way tied to the legislation, so the proprietors could seek to recover possession by the usual Scots law channels, or just wait until the campers got bored. Either way, this is what the situation was like the last time I passed.

Occupy lockdown

If you can’t play nice, you can’t play at all, seems to be the approach here. Blythswood Square is excluded land in terms of the statute and the proprietors have taken steps to keep people excluded. Quiet tolerance of non-owners taking access to this area has ended.

The Law in Action at the #indycamp

Returning to Holyrood, the applicability of the section 6(1) exclusions are not immediately apparent to the indycamp. The building itself is a structure (s 6(1)(a)(i)), but its awkwardness as a pitch renders that exclusion irrelevant. The curtilage of a building is also excluded (s.6(1)(b)(i)). “Curtilage” is not defined in the statute. It essentially gives a bit more room around a building than the actual external walls, but it cannot be taken to stretch a great distance. What of section 6(1)(j)? That relates to land “which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.”

Section 11 can be dealt with quickly. Temporary exclusions of up to six days for a particular purpose can be authorised by the local authority, in this case Edinburgh City Council. That particular purpose might be for a music festival, Hogmanay celebrations, or even Remembrance Sunday. (The latter played a role in Glasgow City Council’s desire to recover George Square in time for commemorations to take place in 2011.) No access rights exist for the specified time of suspension. Any longer than six days requires Ministerial involvement.

Section 12 deals with byelaws that can regulate access. Such byelaws exist for Holyrood Park. Although not available on the http://www.legislation.gov.uk website, I understand the Holyrood Park Regulations 1971 (SI 1971/593, as amended) are displayed at the entrances to the Park. Camping is covered, hence why the indycamp moved from the Park itself to nearer the Scottish Parliament building (as detailed in the Herald article (£)).

Assuming there are no such byelaws covering the land where the camp is now, the Scottish Parliament then finds itself in the position of any other landowner. Case law suggests a landowner can engage in a certain amount of sensible management or zoning of activities, as seen in Tuley v Highland Council 2009 SLT 616, but it does not seem any such management has taken place yet. I certainly did not see anything like this on my last visit to Holyrood, exactly a year ago.

What now?

Can the intrepid indycampers fastidiously observe the law of the land and take heed of the Access Code, thus rendering it difficult to argue irresponsible access is being taken? Subject to some very important caveats, they might just be able to. Some caveats are listed above. Another key consideration is the ease in which a section 11 order could be made for a short time, possibly allowing eviction to take place in the window occasioned by the order, but that would have to be balanced with the local authority’s role as an access champion in terms of section 13 of the Land Reform (Scotland) Act 2003.

From a property law perspective, all of this makes for a fascinating dynamic. Sure, a landowner still has a huge say in what happens on land, but other people also have entitlements. Had the indycamp chosen a site that was clearly excluded (like Blythswood Square) the landowner would have a much stronger hand, but the Land Reform (Scotland) Act 2003 makes recovery of possession in non-excluded areas a more delicate exercise and the campers might just be able to lob a few legal arguments around to allow them to continue to camp near the Scottish Parliament.

Mind you, they haven’t chosen a good time of year for it. For their sake, I hope we are not in for a cold and long December.

Further basedrones blogs on access to land are available here and here.

UPDATE: 10 December

It seems steps towards enforcement are being made, as per this Scottish Parliament Letter. That was dated 8 December. The camp was still there on 9 December, when I took these photos.

I understand the camp is still there tonight.

When I took the photos, I was actually struck by how congruous the camp was when looking out from the Parliament: note (if you can) that there are some green tents nicely camouflaged under the copse of trees in the middle of the first photo. Another quick point to note is the 4×4 cannot be there under the Land Reform (Scotland) Act 2003, which has an exclusion for most motorised vehicles.

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