Scottish Court of Session Decisions

Lord President.—On the 19th July 1912 the Magistrates of Edinburgh issued a proclamation which, after a certain preamble which I need not read, continued as follows: “Therefore the said magistrates do hereby order that persons shall not assemble or congregate or hold meetings on any part of the footpaths or roadways within the areas above described”—the area above described was a certain area at the Mound—“or in the neighbourhood thereof, from and after the date of this proclamation, unless they have previously applied for and obtained the licence of the said Magistrates thereto. All persons contravening this order are liable to the penalties set forth in the Summary Jurisdiction (Scotland) Act, 1908.” The pursuer of the present action did proceed to hold a meeting without having obtained the licence of the Magistrates. He was apprehended, and was convicted of having contravened the terms of the proclamation. He was convicted, but he was only admonished; no penalty was imposed on him. He did not try to suspend the conviction in the High Court of Justiciary, but he brought this civil action in which he asked for certain declarators. I need not go through the declarators for which he asked, because I am only concerned now with the declarator which he got from the Lord Ordinary. The Lord Ordinary “finds and declares that the Magistrates of the city of Edinburgh were not empowered by the common law or by any statute to issue the proclamation mentioned in the summons, and that the pursuer was not at 19th or 21st July 1912, and is not now, bound to obey said proclamation, and decerns”; and then there are certain other parts of the decree which it is not necessary to mention. The whole question which was argued before your Lordships upon the reclaiming note has been whether that finding of the Lord Ordinary was right or was wrong. I am of opinion that the Lord Ordinary has come to a just conclusion, and he has accompanied his judgment with a very careful and learned note, with nearly all of which I concur, the only two passages on which I shall have something to say I shall mention presently. But I think it necessary to add a few words, because I wish it to be most distinctly understood that, while I agree with the Lord Ordinary, I am not to be held as concurring with much of the argumentative statement which is to be found in the pleadings of the pursuer.

The justification for the proclamation was rested by the learned counsel for the defenders (first) upon the common law, and (second) upon the statute of 1606. I shall take these two points separately.

As regards the common law, I wish most distinctly to state it as my opinion that the primary and overruling object for which streets exist is passage. The streets are public, but they are public for passage, and there is no such thing as a right in the public to hold meetings as such in the streets. That brings me to one of the few points on which I think it necessary to say something as to what the Lord Ordinary has said, because in one view of what he has said I should not agree. The learned Lord Ordinary, after saying that if the pursuer had claimed an absolute legal right to hold a meeting on a road or street he would have assoilzied the defenders upon the ground that no such right existed—a proposition with which I agree—goes on to say this: “I merely say that I dissent from the view that the public have only a bare right of passage over a country highway or over the streets of a burgh.” Well, in one view of that I do not agree. On the other hand, I am not sure that there is really any difference between the views of the Lord Ordinary and my own. What I mean is this: streets are for passage, and passage is paramount to everything else. That does not necessarily mean that anyone is doing an illegal act if he is not at the moment passing along. It is quite clear that citizens may meet in the streets and may stop and speak to each other. The whole thing is a question of degree and nothing else, and it is a question of degree which the Magistrates are the proper persons to consider in each case, and it is for them to take such measures as are necessary to preserve to the citizens in general that use which is paramount to all other uses of the streets. I say this because there is a good deal in the pursuer's pleadings about what he calls “exercising his right of free speech in public places.” Now the right of free speech undoubtedly exists, and the right of free speech is to promulgate your opinions by speech so long as you do not utter what is treasonable or libellous, or make yourself obnoxious to the statutes that deal with blasphemy and obscenity. But the right of free speech is a perfectly separate thing from the question of the place where that right is to be exercised. You may say what you like provided it is not obnoxious in the ways I have indicated, but that does not mean that you may say it anywhere.

I am not going to deal with what may be the case in open spaces or public places. It seems to me that no general pronouncement upon that subject could be made, because, although for convenience sake one often speaks of open spaces or of public places, the truth is that open spaces and public places differ very much in their character, and before you could say whether a certain thing could be done in a certain place you would have to know the history of the particular place. For example, there may be certain places which are dedicated to certain uses, as was laid down in the well-known judgment of Lord Watson in the case of Grahame v. Magistrates of Kirkcaldy, and things that otherwise were lawful might be restrained if they interfered with the purposes of that dedication. Each of those cases must be dealt with when it arises. Here we are dealing with a street proper, because this place at the Mound is just one of the streets of the city. It is a thoroughfare, although, probably, not a very much used thoroughfare at that particular corner. In such a place there is not the slightest right in anyone to hold a meeting as such. On the other hand, if a man chooses to stop on the street and speak, and the Magistrates, as the best judges of that matter, do not think he is doing any harm, there is no particular reason why he should be interfered with. But the Magistrates, as the proper conservators of the street, have got to consider two things: (first) whether what is going on in the streets is at all likely to interfere with what I have said is the paramount use of the streets—the right of passage; and (secondly) whether what is going on is likely to lead to a breach of the peace. In either of those cases it seems to me that they have an absolute right via facti by means of the police to move the people on who are causing the obstruction. They may move them on if the congeries of persons who have gathered round is such as to prevent an ordinary peaceable citizen getting along the street as he wishes to do. But I also think, if they find a person speaking in such a way as is calculated to incite other persons to commit a breach of the peace, they have a right to move him on, not because the right of free speech can be questioned, but because he is doing something which is likely to make a breach of the peace in the streets for the proper conduct of which the Magistrates are responsible. But I think their right is necessarily limited to dealing with him via facti. I am not speaking of the actual commission of breach of the peace. That is a common law crime which can be prosecuted in the ordinary way. But conduct which is such as to cause an apprehension of breach of the peace may be dealt with via facti. There are many cases which one can easily think of without going into any speculations as to what this particular pursuer may have been saying. There are certain allegations made on record about that; but as there has been no proof, I hold my mind a perfect blank as to what the subjects of discourse were, or how they were handled by the pursuer. But I certainly know this—and I am entitled to know it from the experience of public life—I know that there are certain districts in certain cities in which a very large majority of the population hold a certain faith, or a certain form of faith, and I know that if a person, lecturer or preacher, holding other views, went there and promulgated his opinions as regards that faith, although he has a perfect right to hold these opinions, and although, in a proper place, he has a right to express them, his doing so in that particular neighbourhood would certainly lead to a breach of the peace. Now that is a case where, if a man took up his stand and began his discourse on such lines, the Magistrates would, I think, be entitled at once to move him on.

While I have thought it necessary to say that—because I wish it to be very clearly understood that the Magistrates are the natural conservators of our streets in this matter, and that the citizens are not to be harried by the holding of meetings which interfere with their progress, or which lead or are likely to lead to breach of the peace—yet it does not seem to me in any way to justify this proclamation, because, although the Magistrates have the power of moving a person on, and although also they might issue what might, in one sense, be called a proclamation, but which would be really a notice to say that they found certain objections to meetings in such and such a place, and that they proposed to move on anyone who stood there, that does not give them the power of creating an offence and fencing it with a penalty. In doing that they seem to me to have taken upon themselves a power which only the Legislature can give. And the fatal blot of this proclamation, so far as sought to be based on the common law, seems to me to be that they created an offence, and proposed to impose penalties whenever the offence which they thereby created was committed.

So much for the common law. I only mention, to show that I have not forgotten it, that, of course, over and above what may be called the common law powers, there are certain powers which the Magistrates have by statute in connection with the framing of bye-laws. I need not go into that, because that is dealt with statutorily. There are certain safeguards before the bye-laws are passed, but admittedly this proclamation was not issued in respect of any bye-law.

Then I go to the Act of 1606. No doubt the Act of 1606, if you take it by itself, does authorise this proclamation; but I have myself no doubt whatsoever that the Act of 1606 is in desuetude. And here is the only other point on which I think it necessary to say I do not quite agree with one expression of the Lord Ordinary, although I agree in the result to which he has come. He considers that, without doubt, the statute is in desuetude as regards meetings within buildings, but that meetings in the open air are in a different category. Then he says that, in some of the opinions in Bute v. More, “authority for the proposition that Scottish statutes may fall into partial desuetude will be found.” I am not quite sure that he agrees with that, but it is merely to make sure that there shall be no doubt about it that I venture to express my opinion to this effect. I think it is possible that a statute might be partly in desuetude and partly not, where portions of the statute were separable—that is to say, the statute might deal with two matters, and as regards one matter it might be in desuetude and as regards the other it might not. But I cannot conceive that a statute could be partially in desuetude in respect of its application. What is prohibited under the statute of 1606 is a meeting without the authority of the magistrates. Well, that statute must be either in observantia or in desuetude. I do not think it can be in observantia as regards one class of meeting and in desuetude as regards another. If that is so—if you cannot split the statute in its application—then it seems to me clear that it is in desuetude, because we all know that the habit of public meeting has existed now from time immemorial, certainly ever since the enhanced political activity which may be said to have come in since the Reform Act of 1832; and with regard to all the meetings, on all the subjects, political and otherwise, that have been held since those days, no one ever heard of an application being made first to the magistrates for a licence to hold any one of them. Accordingly I hold that the statute of 1606 cannot form the basis for the proclamation.

Upon the whole matter I have come to the conclusion that the Lord Ordinary's decision is right, and should be adhered to.

Lord Kinnear and Lord Johnston concurred.

Lord Mackenzie.—I agree with the conclusion reached by the Lord Ordinary.

The proclamation of 12th July 1908 is said to be warranted by the Act 1606, cap. 17, and also by the common law.

The Act of 1606, cap. 17, is, in my opinion, in desuetude. To hold otherwise would be to affirm that no persons can assemble themselves together on any occasion within burgh without first going to the provost and bailies, intimating the lawful cause of their meeting, and obtaining their licence. No body of persons, and no meeting, whether in a private house or public building, in private grounds or public park, is exempt from the prohibition of the statute, which is universal in its terms. It is impossible to construe the statute in any but the widest sense. It was argued that although it would be impossible to apply the statute to meetings held within four walls, and that to this extent the statute must be held to be in desuetude, yet it is only in partial desuetude, and the case of Bute v. More was referred to. Even assuming that when a statute prohibits A, B, and C, it may be in desuetude as regards A, and yet effective against B and C, that is not the nature of the prohibition here. The prohibition is not of different acts, but of one act, i.e., assembling, under any conditions. For this reason it is impossible to distinguish between one kind of meeting and another. It applies to all or to none. This statute cannot be regarded as in partial desuetude only. The decision in the case of Deakin founded on by the defenders did not involve a recognition of the Act of 1606. The appellants there had been guilty of a breach of the peace, and of breaking the terms of the proclamation which had been issued by the magistrates. The proclamation in that case was different from the one here, for it merely prohibited certain processions, on the ground that they were leading to riotous proceedings and were likely to cause a breach of the peace. The ground of judgment there was not the Act of 1606. If the proclamation here had been in these terms the case upon the common law aspect of it would have been different. There is no warrant, in my opinion, for the Magistrates in the exercise of their common law powers prohibiting all meetings in the places specified in the proclamation, until licences have been obtained. Still less could they attempt to adject penalties for the infringement of the proclamation.

I am, however, clearly of opinion that the powers of the Provost, Magistrates, and Council at common law are not limited, in the way suggested in the argument for the pursuer, merely to what is contained in the Municipal Acts.

They are vested with the administration of the public streets, both within the ancient and the extended royalty, including the space in question in the present action. They could, if they thought right, prohibit any meeting being held there; or they might issue a notice prohibiting the holding of certain meetings as likely to lead to a breach of the peace. It would be the duty of the police to enforce their orders, and if anyone obstructed the police in the execution of their duty he would be prosecuted for that. I am, however, unable to take the view that, if meetings are allowed at all, any meeting can be prohibited except upon the ground that it is calculated to cause obstruction or breach of the peace.