Scottish Parliamentary Corporate Body v The Sovereign Indigenous Peoples of Scotland, 5 May 2016 – removal of protestors camping at the Scottish Parliament

This is an Outer House case in which the Scottish Parliamentary Corporate Body sought an order for removal of a group of individuals camped within the grounds of the Scottish Parliament with the stated intension of remaining there until Scotland declares itself an independent country.

Lord Turnbull found that the corporate body was the valid proprietor of the grounds on which the camp was located, that the campers had no lawful right to encroach upon the corporate body’s property and found that arguments made by the campers concerning the impact of the Treaty of Union (leading to the creation of Great Britain) on the provision of the corporate body’s powers by the Scotland Act 1998 had no foundation. Lord Turnbull also rejected arguments based on rights claimed by the campers under The United Nations Declaration on the Rights of Indigenous People of 2007 and, in addition, found that the campers’ occupation of the camp did not fall within rights of access (the “right to roam”) created under the Land Reform (Scotland) Act 2003.

However, Lord Turnbull did find that, as the corporate body is a public body, it is unlawful for it to act in a way which is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms. As such, it was necessary to consider whether granting an order for removal of the campers was compatible with the rights guaranteed by the convention; in particular article 10 (freedom of expression) and article 11 (freedom of assembly and association). Consequently, Lord Turnbull granted a procedural hearing anticipating that it would lead to a further hearing to consider evidence on the proportionality of granting the order removing the camp (i.e. to allow the corporate body’s right to the removal order to be assessed against the campers right to freedom of expression and freedom of assembly and association).

The full judgement is available from Scottish Courts here.

(See decision on human rights issues here.)

 

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Land Reform (Scotland) Act 2016

An Act of the Scottish Parliament making provision for:

  • a land rights and responsibilities statement (to be reviewed every five years) to contain principles for guiding the development of public policy on land rights;
  • establishing a Scottish Land Commission (to monitor the system governing ownership and management of land and to recommend changes in the public interest);
  • a public register of persons with a controlling interest in land (aimed at improving transparency of landownership);
  • requiring that Ministers issue guidance on the circumstances in which landowners should carry out engagement with the community;
  • empowering communities to buy land where it is necessary to further sustainable development;
  • the application of non-domestic rates to shootings and deer forests;
  • empowering local authorities to change the use of inalienable common good land;
  • additional powers for Scottish Natural Heritage to intervenewhere the management of deer by landowners and occupiers is not delivering in the public interest;
  • amendments and procedural clarifications to be made to the access rights over land  contained in Part 1 Land Reform (Scotland) Act 2003; and
  • reform of the agricultural holdings legislation (aimed at improving relationships and re-dressing imbalances between tenants and landlords).

The Act received Royal Assent on 22 April but further regulations are required to bring the various provisions into force.

The Act is available here.

 

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Some reasons for optimism for Scottish rugby

Notwithstanding yesterday’s disappointment there are a number of reasons to be optimistic about the future of Scottish rugby.

1. Glasgow winning last year’s Pro 12.  Edinburgh becoming competitive, reaching last year’s Challenge Cup final and in contention for a play off place.  I think it is a good thing that both Scottish teams do not automatically qualify for the European Cup.

2. There is now more coverage of Scottish rugby.  Although print media coverage has declined social media coverage is increasing all the time. Glasgow Rugby seem especially keen to use social media.  We in the Borders are also very lucky to have Border Rugby TV.

3. The SRU now seem to be taking women’s rugby more seriously with the appointment of Shade Munro and the amount of resources going into it.

4. Finally we seem to be moving in the right direction as far as regional academies are concerned.

5. Friday’s win for our under 20 team is tangible evidence of the growing number of players we at last have coming through and who seem ready for a career as a professional rugby player.  I suspect a lot of this is down to the work of Sean Lineen.

6.  The appointment of Richie Gray

7. The standard of the premiership continues to improve as does the coaching at that level.  It is now a very competitive league.

8. The news of the increased links with London Scottish is long overdue and could potentially give a number of younger players a great chance to experience a good level of rugby. Again I am glad to see Sean Lineen involved in this. We also need to consider whether the money we put into our national sevens squad could be better spent at London Scottish or on our premiership teams.

9. The Club internationals are a good addition to the rugby calendar.  I personally would still like to see our district teams play in the B&I Cup or have them play each other on the same weekends Edinburgh play Glasgow.

10. At last we have the makings of a Scottish wide competitive youth structure.

11. There seems to be more sponsorship money coming into our professional game and the SRU’s debt mountain could at last be paid off within a few years.

It is just a pity that so many years were wasted by a series of incompetent SRU administrations.

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Merry Christmas and best wishes for 2016 from Legal Knowledge Scotland

Merry Christmas and a Happy New Year to all from Legal Knowledge Scotland.

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(First) Ewen John Macpherson and (Second) Lorraine Mary Anne Macaulay v (First)  Richard Colin Macqueen, (Second) Michael Iain Macqueen And (Third) Yvonne Janette Macqueen, 7 August 2015   -enforceability of contractual obligations contained in missives after the missives ceased to be enforceable

Inner House case considering the enforceability of contractual obligations contained in missives after the missives ceased to be enforceable.

Background
Mr McPherson and Ms Macaulay (the pursuers) sold a house and garden ground in North Connel to the Macqueens (the defenders) whilst retaining some adjacent land on which they intended to build two semi-detached houses. The missives contained conditions obliging the defenders (who also owed an adjacent property) to convey a strip of land to the sellers and also to grant a servitude right of access over an additional strip of land. The missives incorporated the Combined Standard Clauses (2009 edition) which include a clause providing that the missives will cease to be enforceable after 2 years.

Arguments
The pursuers sought an order for specific implement in order to compel the defenders to convey the strip of land and grant the servitude. The action was raised outwith the 2 year period and the defenders argued that it was time barred (as the obligations were either part of the missives or collateral to them and consequently ceased to be enforceable when the missives ceased to be enforceable). That argument was rejected in the sheriff court; the sheriff taking the view that the obligations to convey the strip and grant the servitude formed a separate contract to the sale of the house and garden (albeit recorded in the same document).

Decision
However, the Inner House allowed an appeal of the sheriff’s decision. The court agreed with the defender’s contention that the obligations to convey the strip of land and grant the servitude formed part of the overall consideration (in addition to the purchase price of £245k) and, as such, were an intrinsic part of the contract for the sale of the property and became time barred when the missives ceased to be enforceable.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

 

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LKS Style Bank – corporate styles

The LKS style bank now has a corporate section which includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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New styles

The latest additions to the LKS style bank are:

1.3.4.3​ -​ Offer by landlord take renunciation of lease from tenant and grant new lease to tenant​​
1.3.3.2​ – Offer by assignee to take assignation of lease from assignor​.​

These are available to our subscribers here and for individual purchase here .

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LKS Style Bank – new corporate styles added

We have added a new corporate section to our styles bank. The section includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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Additions to the LKS style bank

The following property styles have now been added to the LKS style Bank:

  • 1.3.2.3 Offer by tenant to take lease of commercial property with tenant’s fitting out works
  • 3.3.7 Licence for tenant works – standard version
  • 3.3.8 Licence for tenant works – simplified version
  • 1.3.5.2 Offer By Sub-tenant To Take Sub-lease Of Whole Commercial Premises From Mid-landlord.

These are available to our subscribers here. (Contact  andy@legalknowledgescotland.com to receive a subscription quotation.)

And for individual purchase here.

You can see a complete list of all property styles currently available here.

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LKS Style updates -LBTT and CDM Regs

All relevant LKS property styles have been updated to take account of Land and Buildings Transaction Tax (which came into force on 1 April) and the  Construction (Design and Management) Regulations 2015 (which come into force on 6 April).

These are available to our subscribers here. (Contact  andy@legalknowledgescotland.com to receive a subscription quotation.)

And for individual purchase here.

 

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