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The Indycamp: Demonstrating Access to Land and Access to Justice

Document Cited authorities 2 Cited in Related
Date01 May 2017
Pages228-233
AuthorMalcolm Combe
DOI10.3366/elr.2017.0413
Published date01 May 2017
<p>In late 2015, a camp was set up in the vicinity of the Scottish Parliament, on land belonging to the Scottish Parliamentary Corporate Body. What became known as the “Indycamp” comprised a collection of tents, motor vehicles, caravans and trailers, along with the campaigners who brought these items themselves. The campaigners – the (self-styled) Sovereign Indigenous Peoples of Scotland – had hoped to remain there until Scotland became independent from the rest of the United Kingdom. However, court action brought by the landowner in the Court of Session resulted in an order to remove the camp. Following an unsuccessful reclaiming motion against that order,<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref> the Indycamp was cleared on 4 November 2016. The legal process to clear the camp raised some interesting points of law, primarily in relation to access to land, demonstrations, and access to justice. This note considers these issues in turn.</p> ACCESS TO LAND

Engaging in activity on land that you do not own is not always sensible, particularly if you do not have the owner's permission or a right other than ownership. Scots property law does allow access to land without a landowner's prior consent where there is a right under the Regalia (which allows access to the foreshore or a tidal river), a public right of way, or through the rights of responsible access conferred by the Land Reform (Scotland) Act 2003. As will be discussed below, only the 2003 Act was potentially applicable to the Indycampers.

Outside those situations, the traditional position is that a landowner can take steps to retain or regain exclusive possession, albeit she has limited remedies against a one-time, bare trespasser, and for a prohibition of access relative to a specific individual to carry force of law, judicial action must be raised against her. Issues of enforcement and a custom of tolerating recreational access to land aside, the balance of authority demonstrates that a landowner can exert a significant amount of control over access to her land:2 Lord Trayner's oft-quoted maxim that it is “loose and inaccurate” that there is no law of trespass in Scotland3 was approved by the Court of Session in the Indycamp litigation.4

With the underlying property rules being stacked in favour of the landowner, could the Indycampers have relied upon statutory access rights? The 2003 Act, supplemented by the Scottish Outdoor Access Code,5 blankets Scotland with access rights that allow people to be on or cross land in a responsible manner subject to limited exceptions.6 These access rights, which are universally applicable,7 allow people to be “above and below (as well as on)” land for recreational purposes, relevant educational activities (such activities being defined as those which further someone's understanding of natural and cultural heritage)8 and commercial purposes, provided that the money-making activity can also be undertaken “otherwise than commercially or for profit”.9 Recreation is not defined, but the Access Code suggests that it includes activities such as walking, cycling, orienteering, and wild camping. There is also a stand-alone right to cross land.10

Any analysis of a particular access...

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