Access to land and access to justice: the #indycamp at the Court of Session (and still at Holyrood, for now)

On 5 May 2016 Lord Turnbull issued his Opinion in the petition of the Scottish Parliamentary Corporate Body against “The Sovereign Indigenous Peoples of Scotland” and a Mr Arthur McManus Gemmell. The petitioner owns the Scottish Parliament’s real estate in Edinburgh. It brought a court action to clear land adjacent to Holyrood Park of people camping there to make a political point, as blogged here.

The #indycamp, as it has come to be known on social media, has been granted something of a stay of execution. This is on human rights grounds, turning on the question of proportionality when it comes to the course of action chosen by the landowner (essentially eviction) in the context of Article 10 (Freedom of expression) and Article 11 (Freedom of assembly and association) of the ECHR.

There are lots of nice questions about those provisions and the application of them to this situation, especially as the indycampers did not exactly push the human rights issue before Lord Turnbull, but I am not going to explore them. I am going to focus on the topic of my original blog post, the Land Reform (Scotland) Act 2003, which got a few honourable mentions in the Opinion.

Trespassing in Scotland

The first mention the 2003 Act gets in the Opinion is in the context of how it amended the Trespass (Scotland) Act 1865, a measure which remains good law today. The discussion of this legislation followed on from the oft quoted Lord Trayner formulation from a 19th century case that it is “loose and inaccurate” to say there is no law of trespass in Scotland. All of this was in response to (see Paragraph 31 of the Opinion) a:

contention that the law of Scotland does not recognise the concept of trespass [which] was advanced despite the contrary explanations in the passages which were read in court from Rankine, The Law of Land Ownership in Scotland and W.M. Gordon, Scottish Land Law.

This case is an object lesson in the dangers of blindly asserting there is no law of trespass in Scotland. Of course a landowner can take steps to retain and regain possession in many circumstances, but there are sometimes entitlements for others to be on land, and where there are none there are procedural hurdles to clear (or human rights issues to consider) before a court will allow a landowner to remove the person or object that has come to be on its land without permission.

How I tend to explain this to my students is that Scots law does have a law of trespass, but without a capital “T”.

There are also various situations where certain activities on land are criminalised,  including the already mentioned 1865 Act (which regulates occupation, encampment and lighting of fires where those activities are not within the scope of the Land Reform (Scotland) Act 2003).

Is the indycamping allowed under the 2003 Act?

Lord Turnbull is pretty succinct on this. His words (from paragraph 58) follow:

Given that no direct reliance was placed on the 2003 Act, it will be sufficient to note that the right of access given by section 1 is a right to be on land for limited purposes, as defined within that section, none of which are present in the circumstances of the occupation by the Camp.

Those limited purposes are: a) recreational; b) educational; or c) making a profit.

I pondered previously that there might have been a recreational angle, but Lord Turnbull does not even consider that option. Six months of camping later, any claim of recreation would be tenuous.

There is no educational angle: for the purposes of the statute education is linked to expanding someone’s knowledge of “cultural or natural heritage”, and those terms are defined and the definition would not stretch to educating someone about Scottish independence. (No comment is offered on whether the encampment might be a staging post for guided tours of Salisbury Crags.)

There is no commercial angle. The indycampers are not trying to make money.

And anyway, the indycampers are on the land with motor vehicles. That is not allowed in terms of the legislation.

What next for the indycampers?

There will be another day in court, but it seems fair to say arguments will not be as wide-ranging (and perhaps not as colourful or well-attended) as they were earlier in proceedings, as the focus will be on proportionality. This is all that is left in the case: at paragraph 70 Lord Turnbull states: “I should emphasise that the only remaining issue is proportionality.

I understand a date for the future hearing has not yet been fixed.

Access to Justice

From access to land, to access to justice. Lord Turnbull showed great patience at earlier stages of proceedings and he signed off his Opinion by encouraging the indycampers to obtain some kind of qualified legal assistance (via legal aid).

The legal aid budget is strained at the moment. The Law Society of Scotland tried to make this an election issue.

Amidst talk about schools, healthcare and the constitution, access to justice did not always make the headlines in the recent Holyrood campaign. Okay, you would be hard pressed to find someone more concerned with access to justice than access to cancer drugs, but please leave your false dichotomies at the door. Not having proper legal aid also costs money, because (amongst other things) it eats up court time. To demonstrate that, I will leave the final words of this blog not to Lord Turnbull, but to the English judge Sir Alan Ward in Wright v Michael Wright Supplies Ltd and Turner Wright Investments Ltd [2013] EWCA Civ 234:

The [problem] is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
This entry was posted in Access to Justice, ECHR, Land Reform, Property and tagged , , , , , , . Bookmark the permalink.

One Response to Access to land and access to justice: the #indycamp at the Court of Session (and still at Holyrood, for now)

  1. Pingback: Access to land, freedom of expression, and freedom of assembly: the endgame for the #indycamp | basedrones

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