When the First Respondent in a possession case is styled “The Sovereign Indigenous Peoples of Scotland” and the second, named, Respondent describes himself as “A Member of the Government of Scotland”, you suspect that you know in advance how things will go. In The Petition of the Scottish Parliamentary Body against (First) The Sovereign Indigenous Peoples of Scotland, (Second) Arthur McManus Gemmell [2016] CSOH 65, that was by and large true, but with an interesting follow on to await.

The issue was a petition for a possession order sought against a group of protestors who had set up a camp on a part of the grounds of the Scottish Parliament since last November. The protesters’ arguments seemed to be a tad ‘freeman on the land’-ish.

On the one hand, the Treaty of Union meant that no valid law could be passed that “was not enacted for the evident utility of the Scottish people”, so, (I think) given that these Scottish people wanted to stay where they were, the Scottish Parliament couldn’t have property rights. Or something. This did not fly – “none of these averments offer a valid foundation for a claim of common ownership, or any other right to property legally owned by the petitioner”.

On the other hand, The United Nations Declaration on the Rights of Indigenous Peoples meant that the protestors had a right to maintain a spiritual relation with traditionally occupied land, or to occupy traditionally occupied land or have redress for confiscated land, or something. As the court tersely observed, not only where such UN conventions not justiciable, ‘indigenous’ could not mean what the Respondents argued, which was “a completely misguided understanding of what “indigenous” meant in the context of the Declaration. They saw it as an instrument which would benefit the entire population of Scotland, or at least that part of the population of Scotland which defined itself as Scottish”. This was misguided because Scottish could not be a ‘pre-invasion or colonisation people distinct from other sectors of society now prevailing on those territories’.

Oh and an attempt to argue that there was no law of trespass in Scotland came to grief on, amongst other things, the existence of the Trespass (Scotland) Act 1865.

So that was that for the Respondents’ arguments. But then almost off its own bat, the Court raises Article 10 and 11 issues (Freedom of Expression, Freedom of Assembly). Convention rights had been mentioned (as satisfied) by the Petitioner, and

In oral submissions the second respondent stated, somewhat confusingly, that:  “There are no attempts to invoke any convention rights”. However, in his answers he stated that those involved in the Camp are exercising their fundamental human rights.

The court decided that on the face of it, the circumstances were different to both The Mayor Commonality and Citizens of London v Samedi [2012] EWCA Civ 160 (Parliament Square) and Mayor of London v Hall and others [2011] 1 WLR 504 (St Pauls/Occupy). On that basis, the Court adjourned for the parties to make proper submissions on Art 10 and 11 on proportionality, suggesting forcefully to the Respondents that

It would be to the respondents’ advantage to make whatever efforts they can to enable them to have their interests presented to the court in a competent and properly informed manner, through qualified legal assistance, prior to the next stage in this litigation.

Now, the question that this has raised, not least among Scots academic lawyers that I follow on twitter, is the extent to which the issue of convention compliance is something that the Court can raise as an issue of its own, where not argued (as appears to be the case here) by the Respondents.

In the Article 8 defence English case law, the Supreme Court seemed pretty clear on the point, at least as a ‘general rule’, at para 61 of Manchester City Council v Pinnock [2011] 2 AC 104.

First, it is only where a person’s “home” is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant’s home (e g where very short-term accommodation has been provided). Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.

It will be interesting to see if the issue is raised in the Scottish proceedings, and if so, where it goes. The ‘general rule’ in Pinnock has been upheld by the Court of Appeal in English cases. But the question of ‘horizontal effect’ of the convention – the obligations on the Court as public body – will also be explored in the Supreme Court decision in McDonald v McDonald, (an English case on Art 8 and s.21 possession claims) which is awaited…

Meanwhile, in other things that make you wonder ‘why on earth would you do that?’, the Sutton Council Lib Dems thought it would be a good idea to campaign against the Housing and Planning Bill (so far so good) by sending out ‘eviction notices’ to all and sundry (15,000 people. Words fail me).

On closer reading, the ‘eviction notice’ invited people to sign a petition against the Housing and Planning Bill, but it apparently did not occur to the Sutton Lib Dems that many renters are feeling quite precarious enough thank you without a dramatic ‘Eviction Notice’ arriving without warning in their email inboxes. Much upset and grovelling apologies ensued.

Lastly, in the ‘signs and portents’ category, is Severn Vale Housing (though they are certainly not alone). I’m late in flagging this, because I was expecting developments, including others going public. But other HAs are definitely going the same way.

In a reaction to the Govt applying LHA rates to housing benefit for social rents, Severn Vale have decided they will not rent any social rent properties to any single, childless person under 35.

From 1 April 2016 local housing allowance rules will apply to social housing rents which includes the shared room rate limit for any single person under 35 years old without children. This means we will not allocate a property to anyone affected by the shared room rate, where the amount of local housing allowance that you’re entitled to equals less than the rent and service charges regardless of your employment status. Check online with your local authority for current local housing allowance rates.

This is apparently regardless of whether the person is employed, and/or able to afford the rent (or top up rent). The ostensible basis that the LHA cap for single under 35s is the ‘shared room rate’ which is lower than Severn Housing’s social rent on any property. However, Severn Housing are clearly not willing to take even a slight risk on any single person under 35, no matter what their employment or income history looks like.

Rather confusingly – do Severn Housing know what they are doing? – their ‘Policies’ page states

Under 36 years old – no offers of accommodation will be made to anyone under 36 years old where the local housing authority shared room rate equals less than the rent and service charge regardless of employment status.

Which adds another year and makes no sense… I also wonder how the whole restriction works for nominations by the Council (whose housing stock it used to be).

Age discrimination is, of course, permitted for housing management and allocation under the Equality Act 2010. Housing is expressly excluded from the age discrimination provisions. The rationale for that was to enable sheltered or retirement accommodation to exclude on the basis of age. However, it now means that those under 35 can be excluded from having any access to social housing.

If, as I gather is the case, such an approach becomes widespread, the effects will be dramatic. Not least on the homeless looking to move into permanent accommodation from interim, supported places.

While age discrimination is allowed, I wonder if such a policy may amount to indirect discrimination against those with any other protected characteristics? Blanket policies are always foolish to adopt…