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Illegal occupiers in Scotland – what about their human rights?

In a recent decision published by the Outer House of the Court of Session, Lord Turnbull has reiterated that the Scottish Courts must give consideration to illegal occupier's human rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") in actions for removal from private land. We consider how this decision could impact on private land owners when removing illegal occupiers in Scotland.

Case facts

The land owner of the Scottish Parliament, a public body known as Scottish Parliamentary Corporate Body ("SPCB"), raised an action for removal in the Court of Session after the occupiers of the Independence Camp failed to remove from the grounds of the Scottish Parliament after the expiry of a notice to quit. The group of occupiers calling itself "The Sovereign Indigenous Peoples of Scotland" stated publically that they intended to maintain the Camp until Scotland declares itself an independent country and mounted a challenge to this court action.

At debate the occupiers were represented by a lay representative who advanced various arguments to support their lawful right to occupy. The occupier's main proposition asserted that SPCB did not have any rights in the property as such rights could only be held by a private individual. Amongst others the occupiers suggested that since the Scottish Parliament had been funded by the Scottish taxpayer, any land or property owned by the SPCB belonged to the people of Scotland and was owned in common by them. Lord Turnbull abruptly dismissed these propositions as "plainly wrong" asserting that it has long been recognised that non-natural entities such as Limited Companies can legitimately own property and exercise rights of ownership.  

It was only during oral submissions that the non-legally represented occupiers requested the Court give consideration to the occupier's human rights under the Convention, namely Article 10 – freedom of expression and Article 11 – freedom of assembly and association. In light of these submissions the SPCB stated that the action was necessary due to the security and logistical concerns presented by the occupiers continued occupation on the site, particularly during the events that would follow from the Scottish Parliament elections. As such, SPCB asserted that removal of the illegal occupiers furthered a legitimate aim which was proportionate and indeed necessary.

Decision

Despite the occupier's lack of detailed written and oral submissions on the issue of their Convention rights, Lord Turnbull was of the view that there was sufficient reference to these fundamental human rights to merit further examination. As such the Judge hesitated to grant any order for removal until parties had satisfied the Court that an order for removal was a proportionate response to an intrusion on the occupier's Convention rights.

This case brings into sharp focus the complexities that arise in actions to remove illegal occupiers from private land in Scotland. Due to the land owner in this case being a public body this will certainly have attributed to the Court's call for further representation on the question of proportionality. Nevertheless, in all cases regardless of the nature of the land owner the Courts must exercise the scales of justice in balancing the competing rights of land owners and the unwanted illegal occupiers.  It is for that reason that land owners should seek expert legal assistance at the earliest opportunity to minimise the cost and delay of lawfully removing illegal occupiers for their land. 

Author: Tony Holloran

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Philip Knight

Associate

I work within the Commercial Litigation and Real Estate litigation teams and cover both our Edinburgh and Glasgow offices. I have cases in the Sheriff Court, the Court of Session and the Supreme Court.