Accountability

JustRight Scotland

JustRight Scotland is a long-term organisational member of Together. They want Scotland to be a place where everyone’s human rights are a reality, where everyone has access to justice, and where systems are fixed when they get in the way of this. They are a team of expert lawyers, working with people and communities to change broken systems as well as individual people’s lives.

Barbara Bolton, Partner with JustRight Scotland LLP.

When the UNCRC (Incorporation) (Scotland) Act 2024 (“UNCRCA”) came into force on 16 July 2024, we were representing a family defending against eviction from their home in Govan and had only recently become aware that the multi-generational family included a child. We had only been instructed for a couple of months, although the court case had been running for over a year, and we’d faced a significant challenge in persuading the court to allow time to introduce a human rights-based defence. We would now have a further fight to be allowed to introduce reliance on UNCRCA rights on behalf of the child. We understand this to be the first use of UNCRCA in a civil context. As such, it is of significant public interest, in addition to being of critical importance to the family we represent.   

The Family

The Stringfellow family are traveling Showpeople. Showpeople run funfairs and other entertainment, travelling the country and further afield in doing so. The history of Showpeople in Scotland goes back hundreds of years, and Glasgow has the largest concentration of Showpeople in Europe. Traditionally, Showpeople would travel in the summer and return to a base over winter, but increasingly have a permanent base, as in our family’s case. Showpeople live on a yard, an area of land on which they site their mobile chalets or large caravans, alongside their rides, vehicles and equipment and an area for repairs and upcycling. There are around fifty yards in Glasgow. The Stringfellows live on a Yard in Govan, an area of Glasgow with a particularly strong connection with Showpeople, which they rent from Glasgow City Council. They have lived on this yard for around 40 years.

Eviction – the Court Case 

Glasgow City Council (“GCC”), the landlord, are developing the Govan area in which the Yard sits and seek to evict the family as part of these plans. Much of the Yard cannot be built on, due to the subway running directly underneath it and other constraints. The ongoing presence of the Yard could have been incorporated into development plans without a dramatic reduction in available space for construction, perhaps taking the opportunity to showcase the history of Govan’s Showpeople, drawing a connection between living Showpeople and the small display in the Riverside Museum dedicated to their history. The footbridge to Partick and the museum is located next to the Yard. 

Instead, GCC has sought to evict the Stringfellow family and raised a Court of Session action seeking a court order for their removal. GCC relies on a clause in the Stringfellow’s lease allowing eviction for no cause, on 28 days’ notice. This would be severe even for commercial tenants, but the Stringfellows are not commercial tenants. They reside on their Yard in accordance with their cultural heritage and GCC is seeking to evict them from their home.

Housing Law  

As residential tenants, the Stringfellows should benefit from the security of tenure protections afforded to all other residential tenants of local authorities and social landlords, under the Housing (Scotland) Act 2001. These protections limit the grounds on which social landlords can evict tenants and, even where a ground is established before a court, it must also be reasonable in all the circumstances for the court to order the tenant’s removal. Similar security of tenure protections apply to those who live in mobile homes, under the Mobile Homes Act (1983) (“MHA”). However, GCC argues neither Act applies to the Stringfellows, leaving them with no protections at all.

Human Rights Defence

When instructed, a proof (civil trial) was imminent. We took urgent steps to secure legal aid, instruct advocates and apply to the court for time to introduce a human rights defence based on the right to respect for the home, private and family life under Article 8 of the European Convention on Human Rights (“ECHR”). GCC argued human rights were not relevant and the case turned purely on property law. However, the court was persuaded to allow us limited time and we introduced the Article 8 defence, arguing it would be a disproportionate interference in the right to respect for the home and family life to evict in the circumstances.

We are also challenging the housing legislation referred to above as being incompatible with Article 8 and Article 14 (non-discrimination) ECHR if it does not provide residential social tenants who live in chalets with the same protections as all other residential social tenants. Precarity undermines the ability to live well for those residing in chalets on rented land, just as it does for those residing in rented houses. There is no reasonable justification for excluding people who reside in chalets from these protections. This challenge triggers a devolution question under the Scotland Act (whether the Scottish Parliament had the power to make this law), as Scottish Parliament legislation that is not compatible with ECHR rights can be struck down by the court. In practice, if we were successful on this point, the court would allow time for the Scottish Government and Parliament to remedy the breach. The Lord Advocate has joined the case to respond to the compatibility point and argues, essentially, that the need to regulate different types of property differently is sufficient justification for excluding people who do not reside in houses from secure tenure. The Lord Advocate also argues that the MHA provides adequate protection, but this conflicts with GCC’s position, that the MHA does not apply. 

Having introduced those defences, we then learned there was child on the Yard.

Rights of the Child

In addition to the ECHR defence, the child benefits from rights contained in the UNCRCA, applicable to those under 18 years old, many of which are new to Scots law, including the right to:

• a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, including adequate housing (Art 27);
• preserve their identity (Art 8);
• enjoy their own culture in community with other members of an ethnic minority (Art 30);
• have their best interests be a primary consideration in all actions concerning them, including by public authorities and courts (Art 3) (pre-UNCRCA this test already applied in some contexts);
• to be heard in relation to all matters affecting them, to the extent they are able to form and express views, particularly in any judicial proceedings (Art 12);
• non-discrimination in the fulfilment of these rights (Art 2).

When asked to apply these rights our courts can take into account international sources including treaty body General Comments, Concluding Observations and other international law sources (UNCRCA Section 4). For UNCRCA to have a meaningful impact for children it is essential that our courts do look to those international sources and, taking them fully into account, apply these rights in the Scottish context. For example, following these international sources, the right to adequate housing is interpreted as including the right to security of tenure and cultural adequacy, among other things. The Yard provides cultural adequacy and a space in which the child can enjoy the Showpeople culture along with others, which will be lost if the family are evicted, and if the housing legislation protections do not apply, the child is being denied security of tenure, which is severely undermining her standard of living. 

We are arguing that eviction would breach these and other UNCRCA rights and that if the housing legislation protections do not apply, that is incompatible with UNCRCA and therefore not law in the case of the Scottish legislation. These arguments run in parallel with the arguments based on Article 8.

Applicability of UNCRCA

However, GCC continues to argue that human rights are not relevant here. It asks the court to find that UNCRCA does not apply at all, contending that the relevant function being challenged falls under UK legislation rather than Scottish Parliament legislation, and therefore is not covered by UNCRCA following its restriction to comply with the Supreme Court decision on the UK Government’s challenge to the Bill. The Act’s reach was limited to Scottish Parliament legislation, excluding Westminster legislation even in devolved areas, and to public functions carried out under Scottish legislation or Scottish common law (Section 6).

This is already a familiar preliminary argument, the Lord Advocate having argued the UNCRCA did not apply to her prosecutorial function in the first criminal case in which UNCRCA was considered, PF v JH and LL, [2025] HCJAC 2. The Lord Advocate was unsuccessful in arguing that UNCRCA did not apply and Lord Carloway noted the limited intended effect of the change in wording from the Bill to the Act following the Supreme Court reference [para 45].

GCC argues the relevant function at issue is the raising of the court action and that the power to do so arises from UK legislation, whereas what is challenged is GCC’s decision to evict the family and its failure to treat the lease as including the tenure protections provided to all of its other residential tenants. If GCC is correct that the housing legislation does not apply, it served a notice to quit as landlord under the Scots common law of property, which is covered by UNCRCA. In addition, UNCRC is relied upon in relation to the court itself, as any order for removal would breach Section 6 as it would be incompatible with UNCRCA.

It is disappointing that the first applications of UNCRCA are being met with procedural challenges, rather than a focus on the rights involved.

Conclusion

New legislation often requires court decisions in test cases for confirmation of the meaning of the law when applied in particular scenarios. In the case of UNCRCA there is a particular need for caselaw due to the novelty of some of the rights in Scotland as well as of the interpretation clause and what it asks of our lawyers and judges. A series of court decisions will be needed for the development of a consistent approach to the use of international sources as well as for the articulation of the specific content of UNCRC rights in a Scottish context. I recently attended a talk where the speaker (an Advocate) presented the view that the UNCRCA was doomed to fail, precisely because of these novel features. However, many countries have successfully incorporated and applied these rights in their courts, and Scotland can too.

The case goes to proof (civil trial) on 2 September, for six days. As the first consideration of UNCRCA in a civil context it has high public interest as well as being of the utmost importance to the family. The Advocates instructed in the case are: Janys Scot KC and Morag McEwan for the child, and Craig Murray KC and Jordanna Blockley for the adult.    

Ends

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