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.

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.

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.