Campaigners occupying the "Independence Camp" in the grounds of the Scottish Parliament have been given a chance to show that ordering their removal would be a disproportionate interference with their rights to free speech and freedom of assembly under the European Convention on Human Rights.
In the action by the Scottish Parliamentary Corporate Body seeking an order for removal of those within the camp, Lord Turnbull in the Court of Session yesterday rejected the respondents' arguments based on the Parliament's land belonging to the Scottish people, but said he could not be satisfied at that stage that no relevant answer to the petitioners' claim had been raised.
The campaigners, who styled themselves "the Sovereign Indigenous Peoples of Scotland", represented themselves, arguing among other points that rights vested in the petitioners were in fact owned in common by the people of Scotland, and the petitioners could not assume private rights that were in conflict with the public interest; that the open area on which they were camped had been freely accessed for centuries and to grant the order sought would be an act of dispossessiom diminishing their rights and freedoms; and that any enactment purporting to interfere with such rights was contrary to the Treaty of Union. Arthur Gemmell, who separately lodged answers, claimed that as a body corporate the petitioners could not exercise private law rights, and that Scots law did not recognise trespass.
Lord Turnbull commented that much of what had been said in argument "was in the nature of a philosophical analysis of what the law ought to be, viewed from a particular political perspective, rather than a process of vouching what the law of Scotland actually provides for". It was "plainly wrong" to assert that the petitioners could not own or exercise rights in relation to property, and the fact that an area of grassland or the like was unfenced and that the public were permitted to access it, did not exclude private ownership. The petitioners had vouched their title. It was equally mistaken to claim that there was no law of trespass in Scotland.
Further, in relation to the Treaty of Union, "The respondents... cannot point to any relevant right held by them, or the people of Scotland generally, such as is recognised by law and which has been diminished or affected by the enactment of the Scotland Act, or by the petitioner’s conduct in seeking an order for their removal."
However the petitioners were a public authority which had to act compatibly with Convention rights. Articles 10 and 11 were engaged, as in Mayor of London v Hall (2011), which concerned a protest camp in Parliament Square Gardens.
"The rights recognised in these articles are vitally important", Lord Turnbull said. "They are nevertheless subject to some constraints, which include restrictions, provided they are prescribed by law and necessary in a democratic society. Restrictions operating in, for example, the interests of public safety, or the protection of the rights or freedoms of others might be supported by the court. The question for me would be whether the interference with the respondents’ rights entailed in granting an order would be lawful, necessary and proportionate. It follows that the respondents are entitled to have the proportionality of the making of the order sought by the petitioner assessed by the court."
He had heard no evidence on the extent to which the camp constituted an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment. The camp appeared to occupy a small area at the very edge of the grounds, and it was "not immediately obvious" that it would "inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner", or that there were any real security or logistical concerns which might weigh the proportionality balance in their favour.
He therefore ordered a procedural hearing at which, he anticipated, "a hearing will then be fixed at which the petitioner and the respondents can lead evidence on the issues which they consider relevant to an assessment of the proportionality of the making of the order sought by the petitioner. At the procedural hearing the parties will require to advise the court which witnesses they wish to lead and which productions they wish to rely on".
Lord Turnbull added in conclusion: "It would be to the respondents’ advantage to make whatever efforts they can to enable them to have their interests presented to the court in a competent and properly informed manner, through qualified legal assistance, prior to the next stage in this litigation."