Saturday, 5 November 2016

Immediate Extract.

After nearly a year, the Independence Camp outside the Scottish Parliament has finally gone. It has been an eyesore throughout but, tellingly, the residents were too typical of a section of their rank and file for any elected SNP politician to feel able to say a single critical word about it. For its entire duration.

It was nonetheless removed at the instigation of that rather obscure institution, the Scottish Parliament Corporate Body, on which the SNP is quite properly represented. And from whose actions, as far as we know, they didn't dissent. So, it is fair to assume that the saner wing of the Nats also got that this sort of thing does their own cause no favours. Even if, for internal Party reasons, they were too scared to say so publicly.

But here is an interesting question? Why did the removal take so long? And here is the interesting answer. It didn't need to.

When Lord Turnbull granted the order for eviction on 28th July he also granted an order for "immediate extract"*. The legal significance of this is simple. The camp could have been removed at any point after 28th July notwithstanding any appeal being outstanding.

I only realised this** when having a look at the Inner House*** decision on the appeal when they reaffirmed that grant of immediate extract. And that is turn is why the Campers could be removed last Friday despite their stated intention to appeal further to the Supreme Court****.

It is thus far from clear why this wasn't then done back in July or early August.

But in some ways that's not the point. The public and the members of the Scottish Parliament itself were left under the impression that the camp had to be put up with until the appeal process was concluded. It's not even clear that members of the SPCB themselves knew the true position. If they did, it certainly doesn't appear in any of their published Minutes.

So, the Corporate Body allowed the Camp to  remain for three months longer than they were legally required to. Without the Parliament being told. While causing  the continued use of  public money on contesting an appeal which, had they already been removed, you do wonder if the campers would have persisted with.

As I say, somebody might want to investigate why. That's all.

Notes:

*Immediate extract is only ever granted if requested by the petitioning party and specifically so that they can act even if there is an appeal. Indeed, asking for it almost implies that  you anticipate a potential appeal.

**In the original version of this blog I said I didn't think Lord Turnbull's 28/7 judgement was on line but I've since been directed to it by @bbcphilipsim https://www.scotcourts.gov.uk/search-judgments/judgment?id=35451aa7-8980-69d2-b500-ff0000d74aa7 This doesn't mention the immediate extract however so that must have been pronounced at the advising. It was definitely granted however as it's referred to in the Inner House decision.

***For non-lawyers, the Inner House is our highest domestic civil appeal court.

**** This is actually going nowhere as it requires leave of either the lower or the higher court. Which they'll never get. That's not however relevant to my central point.





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