M'Ara v. Edinburgh Magistrates and Others

Factual and Procedural Background

The Plaintiff, a street orator and political reformer residing in The City, brought an action against the Magistrates of The City and others (Defendants) challenging the legality of a proclamation issued by the Magistrates. The proclamation prohibited holding meetings in a specified public area without a licence, on penalty of prosecution under the Summary Jurisdiction (Scotland) Act 1908. The Plaintiff had been arrested and convicted for contravening this proclamation but sought a declarator that the proclamation was illegal on two grounds: (1) that the statute relied upon, the Act 1606, c. 17, was in desuetude, and (2) that the Defendants had no common law power to prohibit such meetings. The Plaintiff also sought interdicts against the Defendants issuing such proclamations or licences and damages for alleged illegal arrest.

The Defendants contended that the proclamation was lawful, relying on the Act 1606, c. 17, and their common law powers, and challenged the Plaintiff's title to sue and the competence of the action. The Lord Ordinary found that the Magistrates were not empowered by common law or statute to issue the proclamation and that the Plaintiff was not bound to obey it, but dismissed certain other claims. The Defendants appealed the decision.

Legal Issues Presented

1. Whether the Magistrates had statutory or common law authority to issue the proclamation prohibiting meetings without a licence.
2. Whether the Act 1606, c. 17, under which the proclamation was purportedly issued, was still in force or had fallen into desuetude.
3. Whether the Plaintiff had a right to hold meetings in public streets or spaces without a licence, subject to restrictions such as obstruction or breach of the peace.
4. Whether the Plaintiff had title to sue and whether the action was competent given the statutory remedies available.

Arguments of the Parties

Plaintiff's Arguments

• The Act 1606, c. 17, is in desuetude due to longstanding non-enforcement and contrary practice.
• The proclamation was ultra vires and without lawful warrant.
• The Plaintiff claimed a constitutional right, in common with other citizens, to hold meetings in public streets and open spaces, provided private rights and public order were respected.
• The Plaintiff challenged the Defendants' authority to issue licences or prohibit meetings without statutory basis.

Defendants' Arguments

• The action was incompetent and excluded by the statutory review procedure under the Summary Jurisdiction (Scotland) Act 1908, particularly regarding damages claims.
• The Plaintiff had no right at common law or statute to hold meetings in the specified public streets without a licence.
• The Act 1606, c. 17, was still in force and not in desuetude, as evidenced by historical references and legal commentary.
• The proclamation and licensing regime were legal and intra vires of the Magistrates under the Act and common law powers.
• Even if the Act were partially in desuetude, it could still be enforced in special circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the authority of the Magistrates to issue the proclamation under both common law and statute. It emphasized that the primary and overriding purpose of streets is passage, not the holding of meetings, and that the public does not have a right to hold meetings in streets per se. However, the court acknowledged that citizens may meet in streets provided they do not obstruct passage or cause breach of the peace.

The court found that while the Magistrates have the power to move persons causing obstruction or likely to cause breach of the peace, they do not have the power to create offences with penalties by proclamation without statutory authority. The Magistrates' proclamation, which created an offence and imposed penalties, exceeded their powers.

Regarding the Act 1606, c. 17, the court held that it was in desuetude, having not been enforced for centuries and no longer reflecting the will of the people. The Act's wide prohibition on meetings without licence was impractical and not consistent with modern legal principles. The court rejected the argument that the Act remained enforceable in part or special circumstances.

The court also considered the Defendants' statutory powers to make bye-laws and impose penalties, but noted the proclamation was not issued under any bye-law and thus was not protected by such statutory safeguards.

In sum, the court concluded that the Magistrates lacked both common law and statutory authority to issue the proclamation and that the Plaintiff was not bound to obey it.

Holding and Implications

The court UPHELD the decision of the Lord Ordinary, declaring that the Magistrates of The City were not empowered by common law or statute to issue the proclamation prohibiting meetings without a licence.

The Plaintiff was not bound to obey the proclamation, and the action for declarator and interdict succeeded on that basis. The court did not grant further declarators or interdicts beyond this finding and dismissed the claim for damages against the Corporation for irrelevancy.

The decision clarifies that the common law does not confer a general right to hold meetings in public streets but allows intervention only where obstruction or breach of the peace occurs. It also confirms that the historical statute relied upon is obsolete and cannot support modern licensing regimes by Magistrates absent new legislation. The ruling restricts the power of local authorities to regulate public meetings through proclamations imposing penalties without clear statutory authority.