Access to land and the end of the #indycamp at Holyrood

Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.

Deuteronomy 4.2

The #indycamp is no more. Eleven months of independence-themed camping in Edinburgh is at an end. The Inner House of the Court of Session (the highest civil court in Scotland*) refused the reclaiming motion the indycampers brought against the earlier judgment of Lord Turnbull, meaning their appeal was unsuccessful. Eviction followed (BBC report and video here). Ian Smart, a solicitor and former President of the Law Society of Scotland, has blogged to query why the eviction did not happen sooner. Be that as it may, the campers (and the moveable property they brought with them) have been removed. Steps are apparently being taken to ensure a similar camp does not happen again, by way of suitable landscaping of the site, such that camping or caravaning is no longer viable in the shadow of the Scottish Parliament.

What of the reasoning of the court? As with Lord Turnbull’s offering, I recommend reading it yourself for a full understanding of what Lady Dorrian, the Lord Justice Clerk (who gave the Opinion of the court), faced. One example opens this blog post: Deuteronomy was put forward to explain that “The Court of Session Act 1988 is fraudulent and invalid; there is no such thing as a lawful legal entity“. That is a bold claim to make in a developed legal system that has moved on from previous theocratic tendencies. One indycamper “submitted that the court had no authority since Christ in his second coming had granted the campers authority to use the subjects.” (The same indycamper later bemoaned the fact “that an affidavit from Christ dated 1 August 2016” was not within the court papers.) It would be fair to say these and similar arguments did not fly.

Looking at the judgment from a property law perspective, specifically the ability of a landowner to regain possession, at paragraph 9 we are reminded that Lord Turnbull accepted submissions that the campers “did not have the absolute freedom to choose the manner of the expression of their rights under articles 10 and 11 [of the European Convention on Human Rights] to the detriment of others; and that it may stretch their articles 10 and 11 rights too far if they seek to occupy permanently or indefinitely land belonging to third parties even if occupying small areas, posing no threat to public order and even if not causing damage to property.” Essentially, this view was not strayed from. Where the appeal is of specific interest to land lawyers is in the additional analysis made of the access rights conferred by Part 1 of the Land Reform (Scotland) Act 2003. I pray your indulgence as I look into this issue in a bit more detail.

Access to land and access rights

The relevant analysis begins at paragraph 20:

Mr Keatings [for the indycampers]… made a submission in respect of the Land Reform (Scotland) Act 2003, which was not foreshadowed in his grounds of appeal, and was not made to the Lord Ordinary… Contrary to the submissions made before the Lord Ordinary, Mr Keatings submitted that the reclaimers had a statutory right of access to the subjects under section 1(3)(a) of the 2003 Act, since their activities included recreational ones notwithstanding that the essential nature of the protest was political. Moreover, the activities of the camp served an educational purpose under section 1(3)(b).  They did not come within the restrictions of section 6, and whilst it was correct that vehicles had been driven onto the land on contravention of section 9, the majority should not be punished for the actions of a minority.  In fact, the terms of section 6 prohibited invasion of the space around a caravan, and so protected the reclaimers’ occupation of the subjects. (Emphasis added.)

The legislation does indeed exclude “a caravan, tent or other place affording a person privacy or shelter” and land in the immediate vicinity of such places from the scope of access rights. It seems a stretch to imagine that such a restriction can stop a landowner taking enforcement action against someone in a place affording privacy or shelter on any other basis. (Plus, it is not as if a landowner needs to rely on rights of access under the 2003 Act to take access to her own land.)

The counter-argument to this is set out at paragraph 26.

On the issue of the Land Reform (Scotland) Act 2003, the Act was quite specific in concentrating on certain permitted purposes which gave rise to the right of access, but which also limited the duration of the right. The purposes specified are recreation, relevant educational activity and commercial activities. The primary purpose of the reclaimers… was political: this was not a specified activity and insofar as there are subsidiary objectives such as imparting information by education to others or socialising by holding a barbecue, these were not the primary purpose. The Act only allows someone to remain on the premises while the specified purpose is carried out. They must then leave.

Lady Dorrian wasted no words in rejecting the (optimistic) argument of the indycampers (at paragraph 32).

It was not suggested before the Lord Ordinary that the Land Reform (Scotland) Act 2003 had any bearing on the matter so it is not surprising that this issue was not addressed by the Lord Ordinary. Mr Keatings addressed the matter at length, but we are satisfied that there is nothing in the Act which justifies the reclaimers’ occupation of the property.

Other Stuff

The remainder of the judgment then looks at the proportionality of the remedy sought (that is to say, was the eviction a measured response to the issue faced, with reference to human rights analysis) and a variety of other issues.

As I have blogged before, there is an access to justice angle as well as an access to land angle to this case. In addition to the issue that they could not (or did not) find professional legal representation, some indycampers raised the point that a lower court than the Court of Session should have been the forum (which could, the argument seems to be, have been cheaper, although one suspects the indycampers would have been minded to appeal any Sheriff Court decision that went against them and matters may have ended up in the big court anyway). There were also arguments that the case should have proceeded in front of a jury and that there was a lack of equality of arms.

These access to justice and fair trial points (with reference to Article 6 of the European Convention on Human Rights) did not wash in the Inner House. At paragraph 32, Lady Dorrian is clear in her view that Lord Turnbull took “full cognisance of the fact that they were not legally assisted or legally qualified.” She later notes (at paragraph 45) that there was “no merit” in the whinges about the Court of Session or the lack of jury, then detailed all the steps Lord Turnbull took to assist the indycampers to obtain representation, and as such their Article 6 rights were not breached.

What next?

The camp has gone, but there are two footnotes to all of this.

First, expenses are being sought by the Scottish Parliament, in the sum of £105,889.65 (plus VAT, although the VAT is recoverable). An application to the Court of Session about this sum seems likely, per this letter (PDF also available online).

Second, that letter indicates leave to appeal to the UK Supreme Court has been sought by some of the indycampers.

(To explain the earlier * above in this post, the UK Supreme Court is the top of the judicial hierarchy for Scottish civil law matters, although it sits in London, so you can geographically claim the Court of Session is the highest civil court in Scotland with a certain amount of accuracy.)

Leave has been necessary since the Courts Reform (Scotland) Act 2014 came into force, as explained here. In terms of section 40A of the Court of Session Act 1988, there are potentially two 28 day periods to negotiate for those seeking to appeal: application must be made to the Court of Session within 28 days of the judgment in question, and if leave is refused application can be made to the UK Supreme Court within 28 days of that refusal. Both 28 day periods can be extended at the discretion of the relevant court. (The first 28 day period is almost up.)

A small part of me wants leave to be granted. I am already imagining the former indycampers, latterly of c/o The Scottish Parliament, Holyrood, Edinburgh, posing for photographs next to the William Wallace plaque in Westminster Hall.

Another part of me notes the six-figure sum that has already been totted up. If even this 2014 Yes voter and superfan of access to justice, not to mention an avid reader of case law about the rights of access under the 2003 Act, thinks further time and money spent on this matter might not actually be justified, one can only imagine what those from less sympathetic demographics might think.

Unless of course Christ in his second coming really does want a camp to be at Holyrood until Scotland gets its independence from the rest of the UK. I would feel pretty silly if that was the case.

Credit to Andrew Learmonth for that last observation.

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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.
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