Judge refuses petition to remove ‘Independence Camp’ until hearing debate on ‘proportionality’

A judge in the Court of Session refused to grant an order for removal until hearing evidence on the “proportionality” of making the order.

Lord Turnbull heard that the Scottish Parliamentary Corporate Body was seeking an order under section 46 of the Court of Session Act 1988 for removal of those within the camp, who the petitioner claimed have been occupying part of the grounds of the property of the Scottish Parliament since the end of November 2015 “without right or permission to do so” and who have publicly stated that they intend to remain their “until Scotland declares itself an independent country”.

The petitioner averred that, as the registered proprietor of the heritable subjects registered in the Land Register of Scotland, like any other owner of property it was entitled to the “exclusive use and possession” of its property and to “resist any encroachment made within its boundaries”.

It was submitted that the concept of trespass was recognised by the law of Scotland as a “temporary intrusion onto the lands of another without his permission”, and any trespass which was more than transient was defined as “encroachment” – both of which were “illegal wrongs” which a landowner was “entitled to take action to prevent”.

The first respondents, “The Sovereign Indigenous Peoples of Scotland”, recognised the legal status of the Scottish Parliamentary Corporate Body and the rights of a public body, or other non-natural entity, to own property and exercise other private rights, but contended that since the Scottish Parliament had been paid for by the Scottish taxpayer, any land or property which it owned through the petitioner “belonged to the people of Scotland” and was “owned in common” by them.

It was argued that any right given to the petitioner by statute which purported to give it the power to undermine any rights previously enjoyed by the people of Scotland was “not in conformity with the Treaty of Union”.

The first respondents’ also relied upon the United Nations Declaration on the Rights of Indigenous Peoples, which was said to provide that indigenous peoples had the right to maintain and strengthen their distinctive relationship with their traditionally owned or occupied lands and other resources, and had the “right to redress or compensation” for lands, territories and resources which had been confiscated, taken, occupied etc without free, prior and informed consent.

The second respondent, Arthur Gemmell, who described himself as “A Member of the Government of Scotland”, argued that the petitioner, being a body corporate, and therefore an entity which could neither be seen nor touched, was “not able to own or hold property” and that in any event, the ground on which the camp was located was “public land” which the petitioner was “incapable” of acquiring a right to.

Furthermore, it was submitted that any right which the petitioner claimed to have could be revoked by the people of Scotland, since under the “Treaty of Arbroath” it would take only 100 men to oppose the exercise of the right claimed by the petitioner. As it was said that there were more than 100 people present in court in support of the respondents, the claim by the petitioner should not be given effect to.

Mr Gemmell, who claimed that those occupying the camp were undertaking a “vigil”, also refused to accept that the petitioner had any valid title to the property of the Scottish Parliament, or the surrounding ground, as – despite what was said about the public nature of the ground – the registered owner was said to be a Mr Murray Tosh, a former Conservative MSP.

However, the judge held that the petitioner was entitled to hold or own property, having observed that the assertion that a non-natural entity could not own or exercise rights in relation to property was “plainly wrong”.

He also held that the contention that the Scottish Parliament had been paid for by the Scottish taxpayer and that any land or property which it owned through the petitioner therefore belonged to the people of Scotland, and was owned in common by them, had “no legal substance”.

In a written opinion, Lord Turnbull said: “I am therefore satisfied that the petitioner is the legal owner of the property known as the Scottish Parliament and the surrounding grounds as defined in the copy title produced and as shown on the associated map…This conclusion concerning the legal ownership of the property and grounds concerned is sufficient to permit me to reject the respondents’ other contentions that the grounds concerned comprise open public parkland, or grounds held in common ownership.”

He added: “I conclude that the Scotland Act 1998 gave the petitioner a right to acquire property. I further conclude that the general law of land ownership in Scotland entitles the petitioner to have exclusive use of its property, to resist encroachment upon it and to otherwise regulate the use of its property.

“I am satisfied that the petitioner’s unchallenged averments establish that the presence of the camp constitutes trespass and encroachment on the petitioner’s property…In light of the conclusions set out in this and the immediately preceding paragraph, I am satisfied that it would be competent for me to grant the order sought under section 46 of the Court of Session Act 1988.”

Having held that the petitioner was the “valid proprietor” of the grounds on which the camp is located, that the respondents had “no lawful right” to encroach upon the property, and that the arguments concerning the impact of the Treaty of Union had “no foundation”, the judge required to determine whether there were any other considerations to take into account in deciding whether or not to grant the order sought, including the article 10 right to freedom of expression and the article 11 right to freedom to assemble under the European Convention on Human Rights.

Lord Turnbull said: “The only motion made on behalf of the petitioner at the hearing before me was for decree in terms of the first plea in law. It is the petitioner’s second plea in law which addresses the appropriateness of granting the prayer of the petition. I could only uphold the first plea in law if satisfied that there was no relevant answer stated to the claim.

“It seems right to bear in mind that I am dealing with an important matter involving public interest in which those against whom the order is sought are not legally represented. The question of the proportionality of granting the order sought has been raised, in oral submissions at least, and in my judgement this is sufficient in the circumstances to bar me from granting the order sought until satisfied on this matter.

“I will therefore refuse to grant the prayer of the petition de plano and I will make an order requiring the case to call at a procedural hearing in order to identify the scope of further procedure. What I anticipate is that 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.”