Judges reject protesters’ appeal against order to remove ‘Independence Camp’ from Holyrood

The Inner House of the Court of Session upheld a decision by Lord Turnbull that that the order seeking their removal was “proportionate” and that the interference with the “Indycampers’” human rights was “limited”.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Glennie, 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 have been occupying part of the grounds of its property since the end of November 2015 “without right or permission to do so” and who had stated that they intended to remain their “until Scotland declares itself an independent country”.

In an opinion dated 5 May 2016 on the merits of the action, Lord Turnbull acknowledged that the respondents’ rights in terms of articles 10 and 11 of the European Convention on Human Rights, namely the rights to “freedom of expression” and “freedom of assembly” were engaged, and that they were therefore entitled to have the proportionality of the making of the order sought assessed by the court on the basis of evidence. He therefore permitted an evidential hearing to take place, at which evidence in the form of affidavits was to be presented, and submissions made.

At that evidential hearing the Lord Ordinary accepted submissions for the respondent that individuals did not have the absolute freedom to choose the manner of the expression of their rights under articles 10 and 11 to the detriment of others; and that it may stretch their articles 10 and 11 rights too far if they seek to occupy permanently or indefinitely land belonging to third parties even if occupying small areas, posing no threat to public order and even if not causing damage to property.

In an opinion dated 27 July 2016, the Lord Ordinary held that the respondent had established that the reclaimers’ activities on its property were interfering with its own rights and duties and with the rights of the public and that the order sought met a “pressing social need”.

However, Lord Turnbull’s decision was challenged by a number of individuals representing various interests within the camp.

One of the appellants, Arthur Gemmel, submitted that the Lord Ordinary erred in concluding that the vigil had “no merit”, and argued that the judge’s decision “undermined the principles of freedom of speech and assembly”.

Another appellant, Richard McFarlane, claimed that the Court of Session Act 1988 was “fraudulent and invalid”; that there was no such thing as a lawful legal entity; and that the Lord Ordinary erred in failing to have regard to a document in process described as “Christ’s Amicus Curiae Affidavit”, which stated that “Jesus Christ in his second coming” was “within the camp and has granted his permission to occupy the grounds”.

One of the campers, David Paterson, who asked to be known by his first name only, raised a preliminary point challenging the jurisdiction of the court, and argued that the case should have been heard by a jury, claiming that the failure to do so was a breach of their right to a fair trial in terms of the article 6 of the European Convention.

Four of the group were represented by a lay representative, Martin Keatings, who submitted that the reclaimers had a statutory right of access to the subjects under the Land Reform Act 2003, as their activities served a recreational and educational purpose.

He also argued that the Lord Ordinary failed to consider the issue of proportionality in the wider context of the European Convention, and in the context of the state against the individual.

However, the appeal judges upheld Lord Turnbull’s rulings. Delivering the opinion of the court, the Lord Justice Clerk said: “In short, in his first opinion the Lord Ordinary gave thorough consideration to all the issues raised by the reclaimers and gave full reasons for rejecting their arguments…We can detect no flaw in the Lord Ordinary’s reasoning.

“In so far as the grounds of appeal or submissions for the reclaimer revisit issues decided in this opinion on the validity of the Scotland Act, the capacity or title of the respondents, or the argument that the reclaimers have a right in the subjects as indigenous people, the arguments are untenable for the reasons explained in full by the Lord Ordinary. Equally, arguments challenging the validity of the Court of Session Act 1988 have no force.”

Lady Dorrian added: “It was not suggested before the Lord Ordinary that the Land Reform (Scotland) Act 2003 had any bearing on the matter so it is not surprising that this issue was not addressed by the Lord Ordinary.

“Mr Keatings addressed the matter at length, but we are satisfied that there is nothing in the Act which justifies the reclaimers’ occupation of the property.”

The judges also observed that Lord Turnbull was “correct” in his conclusions on the issue of proportionality.

The Lord Justice Clerk said: “The evidence which was available to the Lord Ordinary was ample to entitle him to make the factual findings upon which his decision was based. It is clear from the terms of his opinion, the essence of which we have recited above, that he considered all the issues relevant to the issue of the proportionality of the order which he was being asked to make, and we can discern no error in law in his doing so.”