The “occupation” of Glasgow’s George Square fizzled out undrammatically yesterday as the encampment firstly declined to defend the evicition notice issued by the city council, and secondly agreed to move to Kelvingrove Park, far from the madding crowds and the centre of authority. Malcolm Combe takes a look at the occupation from a more pastoral angle and asks if our happy campers missed a trick




As a law student at that place of useful learning in Glasgow’s city centre, I was a regular crisscrosser of George Square. Glasgow keelies, working daytrippers from Edinburgh and Gregg’s sausage roll aficionados often crossed my path, but campers? Not so much. The “Occupy [insert location]” movement has certainly spread across the United Kingdom, apparently sparing my Aberdeen base for now. George Square has (depending on perspective) either not been so lucky or proved to be a fertile forum for highlighting the wrongs of contemporary society. The story has been followed by The Firm in commendable detail.

Although the Occupy movement is far from an orthodox camping trip, like many other camping holidays it is now to move to another campsite.

Remembrance Sunday loomed as a very effective (or perhaps inconvenient, again depending on perspective) backstop for upping sticks. Kelvingrove now beckons for the intrepid outdoor enthusiasts, but had this offer of an alternative pitch not been accepted enforcement action seemed inevitable. An earlier court hearing led to a temporary reprieve, whilst clever arguments were raised to perhaps furnish the campers with arguments to remain over and above the bare fact of possession (such as a claim that Articles 10 or 11 of the ECHR might be engaged). Another potential argument based on statutory rights of access could also have been extended.

Part 1 of the Land Reform (Scotland) Act 2003 begins, “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 stand-alone right to cross land. Some of these activities might be relevant to the Occupy movement, 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 in Glasgow’s George Square? 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, providing 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).

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 truly remarkable 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 George Square falls within a relevant section 6(1) exclusion, access rights are exercisable on it.

The applicability of the section 6(1) exclusions is not immediately apparent in George Square’s case. Gladstone’s statue might be a structure (s 6(1)(a)(i)), but its awkwardness as a pitch renders that exclusion irrelevant. What of section 6(1)(j)? That is the most tantalising. This 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. That particular purpose might be for a music festival, Hogmanay celebrations, or even Remembrance Sunday. No access rights exist for the specified time. Any longer than six days requires Ministerial involvement. Scottish Ministers might not be minded to grant a suspension for a lengthy period if that could result in some kind of negative publicity, so no more need be said of section 11.

Section 12 allows byelaws to be made. Glasgow City Council’s website suggest there might be no relevant byelaws as at 5 December 2006, but the “management rules” in s 112 of the Civic Government (Scotland) Act 1982 are in point. This legislation allows councils to regulate the use of and the conduct of persons while on or in any land or premises which is owned, occupied or managed by the authority and to which the public have access. (Rules about premises will be irrelevant to the question of statutory access rights, as buildings and their curtilages are already excluded.)

An example of such rules as they pertain to open areas in Glasgow can be found here (“the Management Rules”). The definition of “Park” in the Management Rules expressly includes “the area known as and comprising George Square, Glasgow”. The Management Rules refer to the Land Reform (Scotland) Act 2003 and appear to be a code embodying sound management. Indeed, any landowner might engage in a certain amount of sensible management or zoning of activities, as seen in Tuley v Highland Council 2009 SLT 616. The position of a council differs to other landowners in that there is an express power to expel or exclude under s 116 of the Civic Government (Scotland) Act 1982, but that difference could be overstated in that all these rules seem to do is put councils on a firmer footing than another landowner might be when seeking to exercise some form of self-help.

What next for Occupy Glasgow? As noted above, they move west to Kelvingrove, but interesting legal questions are left behind. Could the intrepid campers have fastidiously observed the relevant management rules, rendering it difficult to argue irresponsible access was being taken? Subject to some very important caveats, they might just have been able to. Admittedly the power of “the Director”, as defined in the Management Rules, to exclude an excursion entry to a Park might have been relevant to the wild campers, but the drafting is silent as to what happens when that excursion has already gained entry. Glasgow City Council would also be advised to consider its role as an access champion in terms of section 13 of the Land Reform (Scotland) Act 2003 before short-circuiting what might be the legitimate exercise of access rights. That said, a 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. One thing not mentioned in this article until now is criminal law and specific “anti-terror” legislation; no more shall be said other than to acknowledge such rules will always be relevant to any protest.

Besides the right to freedom of expression and right of freedom of assembly and association, the right to access could have played its part in this and other demonstrations like it. But with the flit, George Square is left to the aforementioned Glasgow keelies, tourists and yum yum fanatics. I wonder whether readers in Glasgow would be kind enough to let me know whether George Square is left in a better, worse or indifferent state in terms of litter when normality returns?

Malcolm M Combe
Solicitor and Lecturer at the University of Aberdeen