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Petition of The Scottish Ministers for an order under section 46 of the Court of Session Act 1988 and for interdict and interdict ad interim (Court of Session)
Anonymized Legal Opinion Summary
Factual and Procedural Background
The Petitioners, the Scottish Ministers, own a 3.831-hectare site in The City. The Respondent, an Irish Traveller, and his family have occupied part of it since 2024 without legal entitlement; another area is occupied by itinerant workers. The Petitioners sought an order under section 46 of the Court of Session Act 1988 requiring the occupants to remove themselves, their caravans and goods, together with interdict preventing re-entry. [1][2]
The site has planning permission for a major cultural development, which must commence before 8 November 2026 or lapse. The proposed development is linked to wider regeneration and an adjacent social-housing project. [3][4][5]
The Respondent lives on the site with his partner and 11 children across three caravans. The children have school, health, dental, social and community links in The City. The site lacks sanitation, washing facilities, running water and electricity, and there was evidence concerning fires, waste, unauthorised utility connections and alleged anti-social behaviour. [6][7][8][9][10][11]
The Respondent opposed eviction, contending that no culturally appropriate alternative accommodation was available and that eviction would breach Articles 8 and 14 of the ECHR and the children's rights under the UNCRC. The Scottish Human Rights Commission provided written submissions. [12][13]
The court considered affidavits, social-work and psychological evidence, the children's views obtained through a curator ad litem, and equality and child-rights impact assessments. [14][15][16][17][18]
Legal Issues Presented
- Whether the court should grant possession and interdict under section 46 of the Court of Session Act 1988 against persons occupying the site without right or entitlement. [19][20][21]
- Whether eviction would be a proportionate interference with the Respondent's rights under Articles 8 and 14 of the ECHR. [22][23][24]
- Whether granting the orders would be incompatible with the children's rights under the UNCRC as incorporated by the 2024 Act, particularly Articles 3, 8, 12, 16, 27 and 30. [25][26][27]
- Whether the Petitioners had complied with the public sector equality duty under section 149 of the Equality Act 2010. [28][29]
Arguments of the Parties
Petitioners' Arguments
- The Petitioners sought to vindicate their unencumbered ownership rights, secure the site, address public-safety and nuisance concerns, enable the cultural development and facilitate the adjacent social-housing project. [30][31][32][33][34]
- The eviction was said to be proportionate because the occupants had no legal entitlement to remain, the site was unsafe, development was urgent, delay could cause substantial additional costs and funding risks, and the Petitioners had engaged with local-authority services and undertaken an EQIA and CRWIA. [35][36][37][38][39][40][41]
- The Petitioners argued that responsibility for homelessness assistance and Traveller accommodation lay principally with the local authority, which would remain obliged to provide support after eviction. Article 8 did not require the provision of a site at a particular location. [42][43][44][45][46]
- They submitted that there was no Article 14 discrimination because the proceedings applied to all unauthorised occupants and were not motivated by the Respondent's ethnicity. [47][48][49]
- They argued that the children's rights had been considered through professional assessments, the impact assessments and the court-appointed curator, and that eviction would serve the children's interests by removing them from an unsafe and unsuitable site. [50][51][52][53][54][55]
- They maintained that the EQIA demonstrated rigorous and conscientious consideration of the public sector equality duty. [56][57][58][29][59]
Respondent's Arguments
- The Respondent argued that the site was his family's home and that eviction without culturally appropriate alternative accommodation would interfere with private and family life, home and Traveller identity under Article 8. [60][61][62][63]
- He contended that the lack of an alternative site would force the family either into unsuitable accommodation, potentially split between two properties, or into unsafe unauthorised encampments, disrupting education, healthcare, friendships and support networks. [64][65][66][67][68]
- He submitted that the differential impact on Irish Travellers, compared with occupants offered culturally suitable accommodation, infringed Article 14 read with Article 8. [69][70][24][71]
- He argued that eviction would be incompatible with the children's rights, including their best interests, identity, family life, cultural rights, right to be heard and adequate housing under the UNCRC. [72][73][74][75][76][77][78]
- He submitted that the Petitioners had failed to obtain and consider the children's views before deciding to pursue eviction, making the decision unlawful under Articles 3 and 12 of the UNCRC. [79][80][81][82]
First Interested Party's Submissions
- The Scottish Human Rights Commission took no position for or against the orders but drew attention to non-discrimination, the children's best interests, the right to be heard and the importance of culturally appropriate accommodation. [83][84][85]
- It submitted that Article 3 requires a reasoned assessment of the children's best interests, Article 12 requires their views to be seriously considered, and Article 27 encompasses adequate and culturally appropriate housing. [86][87][88][89][90]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Glasgow City Council v Stringfellow and others [2026] CSOH 19 | Consideration of ECHR and UNCRC issues in Traveller eviction proceedings. | The court distinguished it on its facts and considered its treatment of the children's best interests. [47][50] |
| Manchester City Council v Pinnock (Nos. 1 and 2) [2011] 2 AC 104 | Eviction must be a proportionate means of achieving a legitimate aim; ownership rights carry substantial weight. | The court applied the proportionality framework to the Petitioners' possession claim. [91][92][22][93] |
| Bank Mellat v H M Treasury (No. 2) [2014] 1 AC 700 | The four-stage proportionality test. | The court assessed rational connection, less intrusive measures and fair balance. [94][95][22][23] |
| Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] AC 607 | Proportionality principles. | Cited as part of the governing proportionality framework. [94] |
| The Queen on the application of McDonagh v Newport City Council [2019] EWHC 3886 (Admin) | Meaning of homelessness where a person has a movable structure but no lawful pitch. | Used in analysing the occupants' homelessness status. [96] |
| Codona v Mid-Bedfordshire District Council (2005) HLR 1 | Suitability of homelessness accommodation and special consideration for Travellers. | Considered in relation to the local authority's post-eviction duties. [97][44] |
| Glasgow City Council v X 2025 SLT 525 | Suitability of accommodation and the public sector equality duty. | Cited concerning homelessness duties and the PSED. [97][98] |
| Y v Glasgow City Council 2026 SLT 49 | Suitability of homelessness accommodation. | Cited with other homelessness authorities. [97] |
| Sheridan v Basildon Borough Council (2012) HLR 39 | Conventional accommodation may be offered where no Traveller site is available; proceedings need not await identified accommodation. | Relied upon by the Petitioners. [44][99] |
| Chapman v United Kingdom (2001) 33 EHRR 18 | Article 8 does not require states to provide an adequate number of equipped Traveller sites. | Supported the conclusion that Article 8 did not itself require provision of a particular site. [44][100][46] |
| Bromley London Borough Council v Persons Unknown [2020] PTSR 1043 | An EQIA is not mandatory for the PSED, but undertaking one may evidence a proportionate approach. | The court considered the EQIA as evidence of due regard. [101] |
| Hotak v Southwark LBC [2016] AC 811 | The PSED requires due regard, not achievement of a particular result, and must be considered rigorously and with an open mind. | The court applied this standard and found the Petitioners compliant. [98][57][59][102] |
| Baker v Secretary of State for Communities and Local Government [2009] PTSR 809 | Due regard depends on the circumstances, including the importance of the disadvantage and countervailing factors. | Used to explain the scope of the PSED. [103] |
| Bracking [2014] Eq LR 60 | The PSED must be exercised in substance, with rigour and with an open mind. | Referred to through the principles restated in Hotak. [57][59] |
| R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2009] PTSR 1506 | Rigorous and conscientious consideration of equality criteria. | Its principle was quoted in the discussion of the PSED. [57] |
| Hurley [2012] HRLR 13 | The decision-maker determines the weight given to the PSED; the court examines whether there was rigorous consideration. | Applied through the formulation in Hotak. [57] |
| Aldwyck Housing Group Ltd v Forward [2020] 1 WLR 584 | A breach of the PSED does not automatically require a decision to be quashed. | Cited in the Petitioners' alternative submission concerning remedy. [104][105] |
| Winterstein v France (27013/07) | Proportionality in Traveller evictions requires consideration of lawfulness of occupation, alternative accommodation, minority status and the consequences of removal. | The court treated the absence of alternative accommodation as an important factor but assessed the whole circumstances. [60][106][107][108] |
| Faulkner and McDonagh v Ireland (30416/18) | An unlawfully occupied encampment may constitute a “home” under Article 8. | Relied upon by the Respondent to establish that the site was the family's home. [60][61] |
| Simonova v Bulgaria (30782/16) (2024) 78 EHRR 5 | A home may be established after one year of occupation. | Relied upon by the Respondent on the Article 8 scope issue. [61] |
| Hirtu v France (24720/13) | Even where an encampment is not a “home”, eviction may engage private and family life under Article 8. | Relied upon by the Respondent. [62][63] |
| Hounslow LBC v Powell [2011] 2 AC 186 | Ownership and public housing-management duties support proportionality in possession cases. | The court distinguished those statutory housing cases from the present claim. [109][110][111] |
| Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) | Ownership alone may not suffice where the state is the owner; legitimate aims may be assessed cumulatively. | Referred to in the explanation of the “twin aims” approach. [112] |
| Medway Council v Heron and Ors, Claim no. K01ME613 | The proportionality of immediate eviction depends significantly on alternative accommodation and less intrusive options. | The court distinguished the authority because the Petitioners lacked the local authority's accommodation function and had urgent redevelopment objectives. [113][114][115] |
| Yordanova and Others | Proportionality requires consideration of alternative housing, homelessness risk and the position of vulnerable minorities. | Its principles were incorporated into the discussion of Winterstein. [116][117] |
| Connors | Special consideration should be given to the needs and lifestyle of Travellers. | Referred to in the Traveller-proportionality guidance. [107][117] |
| Stenegry and Adam | Recognition of the vulnerable position of Gypsies and Travellers. | Cited within the Strasbourg principles discussed in Winterstein. [117] |
| City of Edinburgh Council v SP 2026 UT 34 | UNCRC Article 16 interferences may be justified similarly to Article 8 ECHR interferences. | The court applied proportionality to Article 16. [118][86][119] |
| Lord Advocate's References 2025 SLT 101 | Purposive interpretation of “relevant function” under the 2024 Act. | Relied upon in the SHRC's submissions. [120] |
| X, Principal Reporter [2026] CSOH 15 | Application of General Comment 14 and the procedural requirement to evaluate and explain children's best interests. | Relied upon by the SHRC in explaining Article 3. [121][122][123] |
Court's Reasoning and Analysis
The court accepted that the Petitioners owned the site and that no occupant had any right or entitlement to occupy it. Section 46 of the 1988 Act empowered the court to order steps necessary to restore possession and to grant interdict. [19][20][21][124]
Article 8 was engaged because the site was the family's home and because eviction would affect their private and family life and Traveller identity. The court applied the four-stage Bank Mellat proportionality test, accepting that the development, site security, public safety and associated regeneration constituted legitimate aims and that vacant possession was rationally connected to them. [22][23][125][126]
The court concluded that no less intrusive measure would achieve the Petitioners' objectives without unacceptable compromise. Delay risked expiry of planning permission, substantial additional costs, loss of funding and delay to connected developments. Continued occupation was also incompatible with the proposed construction works and site-safety requirements. [127][115][126]
In balancing the competing interests, the court recognised the serious effects of eviction: disruption to education, healthcare, friendships and support networks, the absence of currently available culturally appropriate accommodation, and the Respondent's psychological vulnerability. Nevertheless, the family was already homeless in legal terms, the site was unsafe and unsuitable, the local authority would continue to provide support, and the Petitioners' objectives were important and urgent. The balance therefore favoured recovery of possession. [128][129][130][46][93]
The Article 14 claim failed because there was no evidential basis for concluding that the Petitioners had discriminated against the family. The proceedings applied to all unauthorised occupants, and the evidence did not establish that other occupants would receive culturally suitable accommodation or that the family was treated differently by reason of ethnicity. [24][71][131][132]
Regarding the UNCRC, the court considered the children's unanimous wish to remain together at the site and preserve their Traveller identity, but also their lack of sanitation, insecurity and need for appropriate accommodation. It concluded that remaining at the site was not in their best interests and that the community interest in regeneration and public facilities outweighed the competing interests in the circumstances. [133][134][135][136][137][138][139]
The court held that the orders would not unlawfully interfere with the children's identity or cultural rights, and that Article 16 was satisfied because the eviction would follow a lawful and proportionate judicial process. Access to healthcare, education and homelessness support would continue through the local authority. [140][141][119][142][143]
The court also rejected the argument that the Petitioners had breached Articles 3 and 12 by failing to obtain the children's views at an earlier stage. It found that the children's views had been obtained through the curator, social worker and psychologist and had been given serious consideration in the court's assessment. [27][144][145][146]
Finally, the court held that the Petitioners had complied with the public sector equality duty. The EQIA and CRWIA considered the family's Traveller status, the children's interests and countervailing public-health, safety, community and development considerations. [29][59][102]
Holding and Implications
ORDER GRANTED. The court ordered the unauthorised occupants to remove themselves, their caravans and goods from the site immediately, granted authority for messengers-at-arms to remove them and their property and to open lockfast places, and interdicted them from re-entering the property. Expenses were reserved. [124][147][148][149]
The direct consequence was restoration of the Petitioners to possession and prevention of further occupation, while the local authority's homelessness, education, healthcare and support obligations remained in place. [130][46][143][147]
The decision applied existing proportionality, ECHR, UNCRC and equality-duty principles to the particular facts. No new precedent was stated. [22][23][59][102]
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