No protection for Indy Camp under Articles 10 and 11

23 August 2016 by David Scott

Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here

The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.

by David Scott

Background

Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called.  In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.

The first hearing was interesting to say the least. The Indy Camp protesters—represented both by a group called “the Sovereign Indigenous Peoples of Scotland” and a Mr Arthur McManus Gemmell, identifying himself as “a Member of the Government of Scotland”—challenged the petition, without the aid of legal advice or representation [10]. First the respondents sought to argue that the area around the Parliament was under common ownership, and that the Scottish Parliament was required to act in the interest of the “body politic” [11-12]. By restricting access to this common land “which the Scottish people had accessed for centuries”, it had failed in its duty to the Scottish people. Lord Turnbull could find little legal grounding for these propositions, other than scattered references to the United Nations Declaration on the Rights of Indigenous People of 2007 and the Treaty of Union [13-18].

Mr Gemmell’s submissions were more unusual. It’s perhaps worth quoting some of the submissions in full:

[20] The substantive submissions made were to the following effect.  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.  Nor could it exercise any other private law rights.  An entity such as the petitioner was not governed by law, as laws were made to govern men.  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, 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.  No legal foundation for any of these submissions was identified.

Mr Gemmell then alleged the land was not, in fact, owned by the corporate body of the Scottish Parliament, but was in fact owned by a Mr Murray Tosh, a former Conservative MSP [21]. Some final legal arguments were thrown at the Court:

[22] There was no law of trespass known to Scotland, nor was there any encroachment on the land under discussion, as there was no intention to occupy permanently.  Those occupying the camp were undertaking a vigil.  In any event there was a right to roam.

[23] The Scotland Act was a “subservient” Act and its authority should not be recognised.  The same applied to the Court of Session Act 1988.  In any event, statute law was not proper law.  In discussion this was developed into the proposition that some statutes comprised proper law and some did not.  God would choose those which did reflect proper law.

Lord Turnbull rejected these submissions. The legal status of non-natural entities was long recognised in Scots law [24-26], and the representative status of the Scottish Parliament had no effect on its legal responsibilities [27-30]. The wilder arguments of the second respondent were similarly rejected, with no validity found for challenging the law or authority of either the Scottish or Westminster Parliaments [37-48], and the Scotland Act 1998 clearly providing the Scottish Parliamentary Corporate Body the right to acquire property [31-36]. Little was said about God’s role in the matter.

However, having dealt with these arguments, Lord Turnbull turned to question whether there were further grounds for opposing the petition. Finding that there were sufficient grounds to investigate whether eviction would violate Articles 10 and 11 of the Convention [59-68], the Court ordered a further hearing on the proportionality of the eviction, with a hope that the respondents would seek legal representation.

Arguments

While Lord Turnbull had sought to narrow the scope of the proceedings to the Convention arguments, June’s hearing remained eventful. One respondent, Mr McFarlane, contended that, contrary to the original decision, the Camp had a complete right to occupy the land “based upon the contention that Jesus Christ in his second coming is within the camp and has granted his permission to occupy the grounds”. On this basis, “Mr McFarlane’s proposition appeared to be that the law which [Lord Turnbull] purported to apply has no standing and that his rights and the rights of others were being exercised under what [Mr McFarlane] claimed to be God’s law, and that this should therefore prevail” [26]. Lord Turnbull dryly noted that “[h]aving taken this stance Mr McFarlane made no relevant submissions on the question of the proportionality of granting an order as sought” [27].

Mr McFarlane’s arguments were supported by an affidavit, signed by “Christ – King of Scotland”, “the owner of the whole world and everything pertaining to it”, who—it was claimed—was present in court for at least some of the hearing. Having addressed the affidavit “To ALL the people who are acting as judges in Scotland”, “in this case and all other cases brought before every court in Scotland”, it was claimed that “the judges were frauds, having no authority to judge anyone or to decide any matter, that their oaths were null and void, that they were fraudulently impersonating judges and that they and their fraudulent Queen were guilty of capital crimes and should all be executed”  [42-44]. The respondents, incidentally, had attempted to call the Queen as a witness prior to the hearing, with little success.

The contradictions inherent in this approach did not go unnoticed by Lord Turnbull:

[45] I did point out to Mr McFarlane the logical conflict between asserting to me that neither I nor the court had any jurisdiction, whilst at the same time asking me to apply legal rights in his favour.  I also pointed out that in ordinary circumstances the expression of such comments to the court might easily constitute contempt.  I propose to take a more benign view and not to engage any further procedure.  I will also leave it to others to comment on the tactical wisdom of responding to my original offer to hear submissions on the proportionality of making an order against the respondent’s by referring to me and my colleagues in the manner described.

[46] Rather than addressing the content of this document, or the submission based upon it, I choose to restrict myself to stating the perfectly obvious, namely, that as a judge charged with presiding over legal proceedings in a civilised and mature legal system I must apply the law as promulgated by Parliament and as explained in binding case law.  I have no ability to ignore or to depart from the law of the land based upon one individual’s contention that I should apply what he calls “God’s law”.

Mr McFarlane’s submissions were duly rejected.

Some of the campers had sought legal representation, however—admittedly, only very shortly before the hearing [40]—and it thus fell to their Advocate, Mr Gardner, to fill out the actual submissions.

The Scottish Parliament had argued that the Indy Camp interfered with the proper functioning of the Parliament, interfered with the rights of others to use the grounds, had caused damage to the grounds, and served as a magnet for others who wished to make inappropriate use of the grounds of Parliament [22]. The eviction was proportionate as it would go not to the essence of the right of any of the respondents to express a point of view, nor even to do so at the site of the Scottish Parliament, but only challenged the permanent manner in which the respondents were exercising that right [23].

Mr Gardner began by emphasising the low level of harm caused by those occupying the camp. He identified four distinct propositions from the authorities presented by the Scottish Parliament [33]:

First, in circumstances in which a great deal of harm was caused by a particular protest, and the restrictions imposed on those wishing to exercise their rights went to the manner and form of the protest, then such restrictions could be proportionate;

Second, in circumstances in which a great deal of harm was caused by a particular protest, and the restrictions imposed on those wishing to exercise their rights went to the essence of the protest, then such restrictions could still be proportionate;

Third, in circumstances in which a relatively low level of harm was caused by a particular protest, and the restrictions imposed on those wishing to exercise their right went to the manner and form of the protest, then such restrictions may be appropriate;

Fourth, in circumstances in which a relatively low level of harm was caused by a particular protest, and the restrictions imposed on those wishing to exercise their right went to the essence of the protest, then such restrictions would be disproportionate.

Mr Gardner submitted that the Indy Camp would fall under the latter circumstance: Indy Camp caused little harm to the grounds of Parliament or the rights of others, and eviction would go to the essence of the permanent protest embodied by Indy Camp. [34-39]

Lord Turnbull found in favour of the Scottish Parliament. He rejected Mr Gardner’s argument that the “symbolic value” of the permanent protest was the essence of the respondent’s exercise of their rights, with no evidence as to why a permanent 24 hour presence was essential to their campaign for a second referendum. Other methods were open to them to make their point. In addition, the various justifications put forward for Indy Camp by the respondent’s before the Court, in particular by those who only visited the camp intermittently, demonstrated to Lord Turnbull that the camp lacked a “unified focus” necessary to justify this permanence [47-48]. No legal authority could be found to support this “rather selfish or even arrogant approach” that the rights of the respondents should trump absolutely both the petitioner’s right to possession and the rights of others to enjoy undisturbed use of the grounds. [58] Accordingly, the eviction order was granted.

Commentary

Lawyers may wish to keep this judgment handy when justifying their fees to clients. The case presents a humorous example of the pitfalls of self-representation, and the gulf between, as Lord Turnbull put it, “a philosophical analysis of what the law ought to be, viewed from a particular political perspective” and “what the law of Scotland actually provides for” [10].

Following the judgment the Indy Campers have now appealed the decision, and have yet to leave the grounds of the Scottish Parliament. It is difficult to see on what ground they would appeal, however. While the judgment itself is light on Strasbourg caselaw (or even explicit application of the standard “formula” Strasbourg follows when assessing proportionality under 10(2) and 11(2)), states are often given a wide margin of appreciation in these sorts of cases, particularly when the right to protest is balanced against harm caused to the rights of others .

But, if post-Brexit statements from the SNP are anything to go by, perhaps the Campers’ wish for a second referendum will soon come nonetheless.