APPEAL BY THE SCOTTISH PARLIAMENTARY CORPORATE BODY AGAINST (1) "THE SOVEREIGN INDIGENOUS PEOPLES OF SCOTLAND" (1) DEAN HALLIDAY; GARRY MITCHELL; JOHN FREEMAN; DAVID PATERSON; RICHARD McFARLANE; MAUREEN McLEOD; CECILIA GIBSON AND ROBERT WALLACE AND (2) ARTHUR McMANUS GEMMELL
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 81
P1351/15
Lord Justice Clerk
Lord Menzies
Lord Glennie
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Appeal
by
THE SCOTTISH PARLIAMENTARY CORPORATE BODY
Petitioners and Respondents
against
(1) “THE SOVEREIGN INDIGENOUS PEOPLES OF SCOTLAND” (1) DEAN HALLIDAY; GARRY MITCHELL; JOHN FREEMAN; DAVID PATERSON; RICHARD McFARLANE; MAUREEN McLEOD; CECILIA GIBSON and ROBERT WALLACE and (2) ARTHUR McMANUS GEMMELL
Respondents and Reclaimers
Petitioners and Respondents: Moynihan, QC; Brodies LLP
Respondents and Reclaimers: (1) Martin Keatings Lay Representative for Halliday, Mitchell, Gibson and Wallace
(2) Paterson for himself and Freeman
(3) McFarlane, McLeod and Gemmell: Parties,
28 October 2016
[1] These reclaiming motions arise in proceedings which commenced as a petition under section 46 of the Court of Session Act 1988 for the removal of a group of encamped protestors from the campus of the Scottish Parliament. Answers to the petition were received from (i) the ”Sovereign Indigenous Peoples of Scotland” and (ii) Arthur Gemmell. On 19 January 2016 the court ordained the first respondents to lodge a list of the names and addresses of those people who subscribed to the answers lodged for that organisation. The names on the final list were: Halliday; Mitchell; Freeman; Paterson; McFarlane; McLeod; Gibson; and Wallace. The court allowed those whose names appeared on the list to appear personally or be represented at the eventual evidential hearing in the case. At the initial debate Lord Turnbull allowed Ms Patricia Polley to appear as a lay representative for all the reclaimers save Mr Gemmell, who appeared on his own behalf. At the evidential hearing, three of the named individuals - Gibson, Wallace and Halliday - were represented by counsel, Mr Gardner; and Messrs Macfarlane, Mitchell and Gemmell appeared on their own account. By interlocutor of 29 June 2016 the court had authorised Mr Macfarlane to act as lay representative for Ms Macleod, and authorised Mr Mitchell as lay representative for Messrs Freeman and Paterson. After making avizandum, Lord Turnbull granted the prayer of the petition.
[2] Three separate reclaiming motions were lodged timeously.
[3] A reclaiming motion was enrolled by the second respondent (Gemmell). A further reclaiming motion was enrolled for Mr McFarlane, Ms McLeod and Mr Crielly. The latter not being an individual who has been granted permission to associate himself with the answers to the petition, he was not allowed to be party to the reclaiming motion (interlocutor of 2 September 2016). A third reclaiming motion purported to be in the name of the first respondents, the Sovereign Indigenous Peoples of Scotland, but on 2 September 2016 the court allowed this motion to proceed in the names of Paterson and Freeman. A fourth motion for review was allowed to proceed late in the names of Mitchell, Wallace, Gibson and Halliday (interlocutor of 2 September 2016).
[4] At a procedural hearing in the reclaiming motion, a Mr Martin Keatings was authorised to appear as a lay representative for Messrs Mitchell, Wallace and Halliday and Ms Gibson.
Background
[5] The petition concerned the presence of a group of individuals camped within the grounds of the Scottish Parliament calling themselves “The Independence Camp” (“the Camp”). The respondent sought an order for removal of those within the camp. The respondent asserted that members of the Camp have been occupying a part of the grounds of the property of the Scottish Parliament, without right or permission to do so, since around 29 November 2015, that members of the group associated with it have publicly stated that they intend to maintain the Camp until Scotland declares itself an independent country, their intention being that the camp should grow to have at least 100 persons occupying it.
[6] As the Lord Ordinary noted, the answers in general failed to address themselves to the statements of fact and law set out in the petition, and contained propositions which were difficult to follow. However, the nub of the answers for the Sovereign Indigenous People of Scotland was that they were entitled to occupy the land as of right, it being owned by the common people of Scotland, and they did not require permission to do so. The Scottish Government had no authority since its creation arose from an invalid Act of Parliament, the Westminster Government having no power to alter, affect or innovate upon the Treaty of Union which was an international treaty. The legislation not being for the utility of the people of Scotland was incompatible with the Treaty of Union. Although the answers asserted that the respondent was a public authority, the validity of the respondent as a legal entity was nevertheless challenged and it was maintained that the court had no jurisdiction to hear the petition. The respondent as a public authority could have no private rights. Apart from the Treaty of Union, reliance was also placed upon the United Nations Declaration on the Rights of Indigenous People (2007).
[7] Mr Gemmell’s answers denied that the respondent was a public authority, asserting that esto it was such, it could have no private or property rights. Further, the Scottish Parliament having been funded by the Scottish taxpayer, any property it owned belonged to the people of Scotland. It appears that the validity of the respondent was being challenged, although the reasons for that were rather more difficult to discern. The case being one which affected the whole nation should be heard by a jury. Neither set of answers referred to the European Convention on Human Rights.
[8] The matter came before the Lord Ordinary on the respondent’s preliminary plea that the answers being irrelevant and materially lacking in specification decree should be granted de plano. He rejected the various propositions advanced by the reclaimers in support of their claims to be entitled to occupy the grounds of the Scottish Parliament. However, the Lord Ordinary considered that the reclaimers’ rights to freedom of expression and freedom of assembly under articles 10 and 11 of the European Convention on Human Rights were engaged and that they were entitled to have the proportionality of the making of the order sought by the respondent assessed by the court on the basis of whatever evidence might cast light on this issue. He therefore permitted an evidential hearing to take place, at which evidence in the form of affidavits was to be presented, and submissions made thereanent.
[9] 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.
[10] The Lord Ordinary was satisfied 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. There were other ways in which the reclaimers could legitimately exercise their rights of freedom of speech and assembly, and the order did not substantially impair the reclaimers’ ability to protest at the grounds of the Scottish Parliament. Granting the order would be a proportionate step and the Lord Ordinary granted the prayer of the petition accordingly.
Preliminary issues at hearing of reclaiming motion
[12] At the outset of the hearing Mr Paterson, introducing himself as David, the name by which he prefers to be known, made a submission that this court had no jurisdiction to hear the case which should be, and should have been heard by a jury. The argument was made under reference to the Claim of Right, the Declaration of Arbroath, and the importance of jury trial generally. This motion was supported by all the other respondents. Mr Gemmell added a complaint that the respondents had been treated differently since they had been required to provide their home addresses whereas the witnesses for the respondents were allowed to be designed care of the Scottish Parliament. He made reference to the challenge to the validity of the Court of Session Act 1988 contained within his main submissions. Mr McFarlane submitted that the court had no authority since Christ in his second coming had granted the campers authority to use the subjects.
[13] We determined that this case was not one which was competent to be determined by a jury. Moreover, as Lord Malcolm pointed out at a prior hearing there is no possibility of jury trial in this court. It is not possible anywhere in the UK for an appeal to be determined by a jury. The application was therefore refused. The court observed that there had not been a distinction made between the parties as to their identification; the difference arose only in relation to witnesses who were not also parties to the case. We therefore asked for submissions relating to the substantive arguments. At that point Mr Paterson asked for the court to sist the action. The basis of his motion was so that he himself could assemble a jury. He also asked that the court recuse itself, apparently on the basis that the decision of the court amounted in his view to a criminal offence. He made reference to the fact that prior to the last procedural hearing his computer had been compromised, without explaining the significance of this. It was also suggested that the court’s authority was deficient: it stemmed from a monarch who had not been crowned on the stone of destiny. Mr McFarlane supported the motion on the basis that the court did not have all relevant documents, an affidavit from Christ dated 1 August 2016 not being within the papers.
[14] The basis for this motion was largely the same as the motion which we had just refused, namely a challenge to the jurisdiction of the court. We refused the motion. No explanation for the delay in making the motion for a sist for legal assistance has been made, there having been ample opportunity for such a matter to be addressed prior to the date of the hearing of the reclaiming motion. There was no reason for the case not to proceed, and there was equally no reason for the court to recuse itself. We therefore invited parties to make further submissions on the substantive issues. Mr Paterson indicated that he did not intend to participate further and withdrew from the court. We did however have a written Note of Argument from him to which we have given full regard in our deliberations. Mr Gemmell and Miss McLeod did not supplement their Notes of Arguments by oral submissions. Mr McFarlane did so, but only by reference to the matters which were contained in the Note of Argument. Mr Keatings advanced further oral argument as noted below.
[15] At the conclusion of the hearing, Mr Freeman made a motion to adjourn the case for the presentation of further evidence, and for him to obtain fresh lay representation. The court refused these motions as coming too late in the day. There was no reason why the latter of these motions could not have been made at the outset of the hearing when Mr Paterson withdrew. We were willing to hear any submissions which Mr Freeman wished to make, and, as we reminded him, the court had both grounds of appeal and a written Note of Argument for Mr Freeman, of which it would take full cognisance.
Grounds of Appeal and Submissions
Gemmell
[16] The Lord Ordinary erred in concluding that the vigil had no merit. He erred in equiperating the respondent with a private landowner: the respondent is a caretaker for the Scottish Government and any property obtained by it on behalf of the Scottish Parliament belonged to the people of Scotland. The respondent could act only in a representative capacity and could not hold property other than essentially in trust for the whole of the Scottish people who cannot be excluded from the property. The decision of the Lord Ordinary undermined the principles of freedom of speech and assembly.
McFarlane and McLeod
[17] The Court of Session Act 1988 is fraudulent and invalid; there is no such thing as a lawful legal entity (Deuteronomy 4.2); the Lord Ordinary erred in failing to have regard to a document in process described as Christ’s Amicus Curiae Affidavit; and the respondent had no rights.
Paterson and Freeman
[18] In substance these largely echo the grounds lodged by Mr Gemmell. It is also asserted that the absence of a jury trial was a breach of article 6, a point also advanced for Halliday, Gibson, Wallace and Mitchell, to whose grounds of appeal the submissions for these reclaimers appeared more to relate. The submissions suggest that the Lord Ordinary erred in his assessment of proportionality by failing to include reference to articles 6, 8 and 9 of the Convention, as well as article 1 of Protocol 1.
Halliday, Gibson, Wallace and Mitchell
[19] These assert that the respondent’s agents acted in a way detrimental to the reclaimers’ articles 6 and 8 rights by presenting the petition to the Court of Session rather than in an inferior court. The reclaimers should have had an opportunity to argue their case before the inferior courts. This submission runs alongside a submission that the case should have been remitted to a jury. The decision of the Lord Ordinary did not strike a fair balance with article 10, and was in breach of the reclaimers’ article 10 and 11 rights which required the respondent to engage positively with the reclaimers. A more limited order would have sufficed, and alternative options should have been considered. The court erred in allowing Mr McFarlane to be a listed individual, he being unsuited to the role of party litigant. It is said that the court’s decision to order a list of named individuals in some way adversely impacted upon the reclaimers’ ability to secure legal representation, and a point is made which appears to relate to a question of equality of arms. The Lord Ordinary had ignored a conflict of interest said to have arisen on the basis of the respondent having an allegedly active role in the Land Reform Bill. A further conflict of interest arose by virtue of the fact that Senators of the College of Justice are appointed by the Queen on the recommendation of the First Minister.
[20] Supplementing these submissions orally, Mr Keatings first made a submission in respect of the Land Reform (Scotland) Act 2003, which was not foreshadowed in his grounds of appeal, and was not made to the Lord Ordinary, (see para 58 of the opinion of 5 May 2016). Contrary to the submissions made before the Lord Ordinary, Mr Keatings submitted that the reclaimers had a statutory right of access to the subjects under section 1(3)(a) of the 2003 Act, since their activities included recreational ones notwithstanding that the essential nature of the protest was political. Moreover, the activities of the camp served an educational purpose under section 1(3)(b). They did not come within the restrictions of section 6, and whilst it was correct that vehicles had been driven onto the land on contravention of section 9, the majority should not be punished for the actions of a minority. In fact, the terms of section 6 prohibited invasion of the space around a caravan, and so protected the reclaimers’ occupation of the subjects.
[21] On his Convention argument his submission was that the proportionality of any issue relating to a convention right had to be assessed in the context not simply of that right but of the Convention as a whole. The Lord Ordinary had erred in limiting his consideration to articles 10 and 11 when articles 6, 8, 9 and 13 also had relevance. In support of his argument that the Lord Ordinary had not carried out a proper balancing exercise, Mr Keatings made reference to Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, in particular paras 11, 43, 49 and 50; and to R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2015] AC 945, in particular the dissenting judgment of Lord Kerr at para 137.
[22] Reference was also made to R (Gallastegui) v Westminster City Council 2013 1 WLR 2377; and to A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) [2004] UKHL 56 in the speech of Lord Bingham of Cornhill:
“The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision.”
[22] The Lord Ordinary’s decision did not strike the appropriate balance. It failed to consider the issue of proportionality in the wider context of the Convention, and in the context of the state against the individual. In addition, his decision in May to fix a hearing to be addressed about these matters limited the scope of the subsequent hearing and prevented the reclaimers from presenting arguments in relation to other articles of the Convention, in breach of the reclaimers’ article 6 rights. The only engagement undertaken by the respondent has been a dictatorial one. Since his submissions had taken some time, Mr Keatings, for the assistance of the court, completed his submissions by providing the court with a written copy of the additional material which he had yet to cover. We are grateful to him for that. In those written submissions he suggested that evidence relied upon by the Lord Ordinary was used without agreement, and obtained by the respondent, with other information, from Facebook in breach of Facebook terms and conditions, and possibly by fraud and in breach of data protection measures. He referred to Lawrie v Muir 1950 JC 19 and McGovern v HMA 1950 SLT 133.
[23] In the additional written document he supported his article 11 case by reference to the views expressed in Oya Ataman v Turkey (App 74552/01), 5 December 2006, (para 42) that:
“In the Court’s view, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by the Convention is not to be deprived of all substance.”
He also relied upon Makhmudov v Russia (2008) 46 E.H.R.R. 37 at para 65 and Ademir v Turkey (App 32124/02), 18 December 2007 at para 41. He emphasised largely those aspects of the camp which had been relied upon by Mr Gardner in his submissions to the Lord Ordinary.
[24] Mr Keatings also referred to: Winterstein and others v France (2013) ECtHR Application no 27013/07; Pfeiffer v Austria (2007) ECtHR Application no 12556/03; Delcourt v Belgium (1970) ECtHR Application no 2689/65; Ezelin v France (1992) 14 EHRR 362; Golder v UK (1975) ECtHR Application no 4451/70; and Kuopila v Finland (2000) ECtHR 27752/95. We do not consider that these cases, which are so heavily dependent on their own facts, assist the reclaimers’ arguments.
Respondent
[25] The respondent maintains that the grounds of appeal are misguided. The Lord Ordinary proceeded on the basis that potential interference with Convention rights was an important matter of public interest. The merits of the reclaimers’ views were not in issue. The Lord Ordinary did not err in law in the making of his decision. The identification of the nine named respondents as parties was acted upon without demur by all those involved. Insofar as any coherent proposition has been advanced by the reclaimers it amounts to a suggestion that the Lord Ordinary erred in his assessment of proportionality. However, the Lord Ordinary was entitled to reach the decision which he did.
[26] On the issue of the Land Reform (Scotland) Act 2003, the Act was quite specific in concentrating on certain permitted purposes which gave rise to the right of access, but which also limited the duration of the right. The purposes specified are recreation, relevant educational activity and commercial activities. The primary purpose of the reclaimers represented by Mr Keatings was political: this was not a specified activity and insofar as there are subsidiary objectives such as imparting information by education to others or socialising by holding a barbecue, these were not the primary purpose. The Act only allows someone to remain on the premises while the specified purpose is carried out. They must then leave.
[27] On the main issue in the case, the relevant cases were Mayor of London v Hall [2011] 1 WLR 504, Mayor of London v Haw [2011] EWHC 585, R (Gallastegui) v Westminster City Council (CA) [2013] 1WLR 2377, and R (Barda) v Mayor of London [2016] 4 WLR 20.
Analysis
The Lord Ordinary’s opinion of 5 May 2016
[28] The Scottish Parliamentary Corporate Body was created by section 21 of the Scotland Act 1998. Its purpose, as set out in subsection 3, is as follows:
“The corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament’s purposes.”
[29] Schedule 2 of the Scotland Act provides that the corporation may hold property. The Lord Ordinary was satisfied on the evidence, including the registered title of the subjects, that the Scottish Parliamentary Corporate Body was the proprietor of the subjects known as “The Scottish Parliament”, and that those subjects included the area occupied by the respondents. As he explained, no legal or factual propositions concerning the ownership of the subjects, or any restrictions thereon, were identified to the court. Apart from addressing this fundamental issue, the Lord Ordinary explained in detail why he rejected a submission that there was no law of trespass in Scotland, under reference to Wood v North British Railway (1899) 2F 1 and The Trespass (Scotland) Act 1865. He addressed the submissions relating to the alleged incompatibility of certain legislation with the Treaty of Union, and explained why none of the arguments advanced established a valid foundation for a claim of common ownership of land. He noted that the reclaimers presented no basis for disturbing the conclusion reached by Lord Keith in Gibson v Lord Advocate 1975 SC 136 that:
“..the question whether a particular Act of the United Kingdom Parliament altering a particular aspect of Scots private law is or is not “for the evident utility” of the subjects within Scotland is not a justiciable issue”
[30] The Lord Ordinary referred to Lady Gray’s Motion 2000 SC (HL) 46 in reaching the conclusion that very little of what the reclaimers so frequently and confidently asserted about the Treaty of Union (including whether it could properly be described as a Treaty) was free from legal controversy. In submissions it was conceded for all the reclaimers save Mr Gemmell (whose position was unclear) that the United Nations Declaration on the Rights of Indigenous Peoples was of no assistance to the reclaimers, but the Lord Ordinary nevertheless addressed the matter in detail.
[31] No issue under the European Convention on Human Rights was raised for the reclaimers, but the matter had been raised by the respondent. The Lord Ordinary considered that the arguments raised by the reclaimers, or some of them, were sufficient to engage their rights under Articles 10 and 11. He therefore decided to put the case out for a further hearing on the proportionality of granting the order sought.
[32] 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. Their case was explored at large and in detail, taking full cognisance of the fact that they were not legally assisted or legally qualified. We can detect no flaw in the Lord Ordinary’s reasoning.
[33] 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. The reference to article 1 of Protocol 1 requires to rely on arguments based on common ownership of the subjects and is not relevant. 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 Lord Ordinary’s opinion of 27 July 2016
Proportionality
[34] The evidence which was before the Lord Ordinary in the form of affidavits, and the submissions made to him, are fully set out in his opinion dated 27 July 2016. The Lord Ordinary correctly pointed out that the question whether the camp constituted a protest or a vigil – a point advanced by some, had no relevance to the issue of proportionality. It was the overall nature of the camp which required to be considered. The Lord Ordinary considered that no evidence had been presented to justify a 24 hour permanent presence as essential, and a submission to that effect was undermined in numerous ways, not least the absence of a unified focus for the camp, some referring to it as a peace camp, some as a protest in support of Scottish independence, or against corruption, and others attracted by spiritual considerations. Further, the individual residents of the camp may each be present only intermittently. The Lord Ordinary could not accept that the continuous nature of the camp was of the essence of the protest being made. There was no basis for concluding that the presence of the camp had acquired any symbolic force, distinguishing it from the Aldermaston Women’s Peace Camp, which had been present for 23 years before any action had been taken to end it, and which in any event had a consistent unified focus. The Lord Ordinary drew attention to the observations in R (Barda) v Mayor of London at paragraph 91 that
“In Tabernacle the longevity of the AWPC and the symbolic force it had garnered meant that the camp would become the protest itself. A protest does not acquire that status simply by declaring it to be so.”
[35] Although the order would operate as a restriction on the article 10 and 11 rights of those at the camp, the Lord Ordinary concluded that it would not do so in a way which went to the essence of these rights. It was clear from the evidence that protest in the vicinity of and within the grounds of the Scottish Parliament remained possible in terms of the Parliament’s code of conduct allowing but regulating such protests. The reclaimers’ rights under articles 10 and 11 did not extend to allowing them to exercise those rights in any manner or place of their own choosing. Their right to protest remained, and the only restriction imposed would be as to the manner in which such protest might be executed.
[36] The Lord Ordinary concluded (para 56):
“In the present case the respondents have been in exclusive possession of an area of the grounds of the Scottish Parliament for many months. In doing so they are interfering with the rights of others. The information in the affidavits relied upon by the respondent establishes good reasons for the respondent seeking the order which it does. That information demonstrates that the respondents have continued to interfere with the rights of others to use the grounds openly. They have caused damage to the grounds themselves in a variety of different ways, their presence is incompatible with the nature of the Parliament’s grounds which are unsuitable for use as a campsite and they have acted as a magnet, or a precedent, for other impermissible use of the grounds. It would obviously be inappropriate and reflect entirely unsuitable use of the grounds of the Parliament if there were a number of different groups occupying the grounds. Furthermore, the presence of the camp constituted a significant and obvious obstacle to the proper running of the events scheduled for 2 July this year and will do so for other events of a similar nature which may take place in the future.”
In relation to the reclaimers’ arguments, he noted (para 58):
“In essence the respondents’ position seems to be that their rights under articles 10 and 11 should trump both the respondent’s right to possession and the rights of others to enjoy undisturbed use of the grounds. This rather selfish or even arrogant approach was well illustrated in two ways. First, by the way in which the respondents felt able to hold a barbecue and social gathering in and around the area of the camp which they openly advertised on social media. Second, the affidavits provided, as taken along with the photographs, make it plain that damage has been caused to the grounds of the Parliament by vehicles being parked on the grassed areas and by other means. In production 6/29 there are a number of photographs showing a significant number of motor cars and other vehicles openly parked side-by-side on the grassed areas of the Parliament and near to where the campers’ tents and caravans are located. The photographs show vehicles parked on different days in January of this year and in March of this year. These vehicles are all parked on the other side of the roadway from a public car park.”
[37] 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. He was correct in his conclusions that:
[62] The order sought by the respondent does not substantially impair the ability to protest at the grounds of the Scottish Parliament. It may interfere with the respondents’ wish to conduct their vigil in the manner and form of their choosing but they are mistaken in considering that they have an unfettered right to make this choice.
[63] The interference with the respondents’ article 10 and 11 rights which would be caused by granting the order sought is targeted, limited and will not deprive them of the essence of their rights. The balance which has to be struck in light of all of the circumstances I have identified comes down firmly in favour of holding that the interference caused by granting the orders sought is proportionate.”
[38] The distinction drawn by the Lord Ordinary between a restriction on the right to express views publicly and the right to assemble on the one hand, and on the other hand a restriction on the manner in which these rights are exercised is essentially the distinction made in R (Gallastegui) v Westminster City Council and Mayor of London v Haw.
Positive Engagement
[39] The Lord Ordinary found (para 61) that:
“The officials of the Scottish Parliamentary Corporate Body have made it plain to the respondents that there are other opportunities for them to legitimately exercise rights of freedom of speech and assembly. The officials remain open to negotiations with the respondents to permit the exercise of these rights through events such as meetings, vigils and protests, so long as these comply with the respondent’s policy on such conduct.”
[40] The evidence justifying such a finding is narrated in para 6 of his opinion in general terms, and in specific terms at para 12:
“In his affidavit Sir Paul also mentioned the attempts which members of his staff had made to engage with those occupying the camp. He explained that various efforts had been made to discuss the possibility of alternative forms of protesting, such as protesting on a daily basis, so long as they did not remain overnight or attach any structures to the land on a permanent basis. The campers refused to discuss matters with members of his staff and indicated that they would only talk to the police. He observed that it therefore became clear to him that they were only interested in exclusive and indefinite occupation.”
[41] There is thus no foundation in the reclaimers’ argument that there was a lack of positive engagement on the part of the respondent. The Lord Ordinary was not asked by the reclaimers to consider some order other than the one sought, and in the circumstances of the case we do not think that there was any requirement for him to do so.
Articles 8, 9, and 14
[42] Although there is reference in some of the grounds of appeal, and at least one affidavit, to article 8 of the Convention, the basis for the suggestion that the Lord Ordinary’s decision was in breach of rights under this article is not specified. It was submitted before us that when the reclaimers are on the site the camp is their home, and when wider members of community visit it is their home also. It has not before been asserted anywhere by any of the reclaimers that the camp was their home. In their affidavits Mr Gemmell and Mr Mitchell both gave their place of residence at specific addresses. All the reclaimers save Mr Paterson have given addresses; he has specified his as “care of” an address, being of “no fixed abode”. The Lord Ordinary noted that that the reclaimers were resident only intermittently at the camp. We do not see that any issue arises in relation to article 8. It is not the case that the order made by the Lord Ordinary impinges in any way upon rights under article 9, but even if it did it would arise in relation to article 9(2). Even if either of these articles were relevant, the issue would still turn on the sort of proportionality assessment carried out by the Lord Ordinary.
[43] Although article 14 was referred to, no argument was advanced in support of any issue arising thereunder.
[44] It seems to us that the issues which were considered by the Lord Ordinary were indeed the appropriate ones and he did not err in his approach.
Article 6
[45] The reclaimers contend that in several ways their article 6 rights have not been observed in the present proceedings. They complain of proceedings being raised in the Court of Session, suggest that the case should have proceeded before a jury, and argue that there was a lack of equality of arms. There is no merit in either of the first two points. The raising of proceedings in the Court of Session has no bearing on the question and the proceedings are not of such a nature to make a jury trial a competent way of proceeding. As to the issue of equality of arms, and representation, the issue of representation was specifically raised by the court at the procedural hearing of 19 January when the Lord Ordinary suggested that the reclaimers required to address the question of whether they were seeking legal representation. They do not appear to have done so until a later stage in the proceedings. Lay representation was sought, and authorised, in March of 2016, and confirmed again by Lord Turnbull at the first substantive hearing in May 2016. On 27 May the reclaimers were given until 14 June to seek legal representation. They had not obtained representation by that date, and a motion for further time to seek representation was refused. The Minute of Proceedings does not give the reasons for this, but it presumably related to the late stage of the proceedings at which the application was made. At the next substantive hearing, three of the reclaimers were legally represented, and the remainder were represented personally or by a lay representative. Throughout the court had recognised the position of the reclaimers as party litigants, and had offered advice and assistance to them in relation to the issues which might arise. Specifically, at the hearing on 19 January 2016 the court, in addition to raising the issue of legal representation, raised with the reclaimers the following issues which it suggested they would require to consider, asking that they be addressed in the answers:
- On what basis they contended that this matter should proceed to a jury trial.
- whether they were intending to raise arguments under:
a. Articles 10 and 11 of the ECHR,
b. Articles 11 and 12 of the EU Charter of Fundamental Rights (and if so
on what basis they were said to be engaged) and/or
c. the United Nations Declaration on the Rights of Indigenous Peoples
(and if so on what basis it was said to be binding in Scots law)
[46] At the second substantive hearing, the Lord Ordinary showed considerable indulgence to Mr McFarlane and Ms McLeod, standing the terms of the document to which they refer in their grounds of appeal, and which was examined in detail by the Lord Ordinary at paras 42-46 of his opinion of July 2016.
[47] The respondent had drawn the Lord Ordinary’s attention to The Mayor Commonality and Citizens of London v Samedi [2012] EWCA Civ 160, relating to a camp located in the St Paul’s Cathedral churchyard, where at paragraph 49 the court said:
“The essential point in Mayor of London v Hall and in this case is that, while the protesters’ art. 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.”
[48] Nevertheless, the Lord Ordinary recognised that the factual situation of the case before him might be different, and that where Convention rights were engaged the court required to consider the matter under a particularly sharp focus. For that reason he decided that a further hearing should take place for the question of proportionality to be addressed. In setting that hearing, the Lord Ordinary was not limiting the arguments about proportionality which might be made at that hearing. He did not limit consideration to articles 10 and 11: he himself had identified paragraphs 10 and 11 as of potential relevance but that did not limit the parties to consideration of those alone. In para 70 of his 5 May opinion he simply said:
“[70] I should emphasise that the only remaining issue is proportionality. The parties will need to be clear as to how any witnesses they propose leading will contribute to this issue in a relevant manner. As I alluded to earlier, the proportionality of granting the order sought by the petitioner is not something which has been closely focussed on by the respondents to date. They no doubt directed their attentions to what seemed to them to be the grand or more interesting arguments, as influenced by their underlying political views. In my opinion, none of these arguments had any validity.”
[49] Neither there nor in his subsequent interlocutor did the Lord Ordinary limit the approach which might be taken to arguments relating to proportionality. Had the parties wished to present to the Lord Ordinary the submissions which have been presented to this court, they could easily have done so. There has been ample opportunity for the reclaimers to seek to obtain representation had they wished to do so. There is in our view no basis for considering that the reclaimers’ article 6 rights have been breached.
Amendment of the Interlocutor
[50] The interlocutor of the Lord Ordinary granted the prayer of the petition against any individual against whom service had been effected, which reflected the way in which the petition was originally drafted. The petition however had been amended on 29 June 2016 to add specific reference to the named individuals who were permitted to appear in the case. Per incuriam the interlocutor made no reference to these names. In such circumstances the court has power to correct the interlocutor, even where the interlocutor has been extracted: Provan’s Trs v Provan 1987 SLT 405. The court will thus recall the interlocutor but grant decree anew in terms of the prayer of the petition as amended, allowing for immediate extract as the Lord Ordinary had done.
[51] For these reasons we shall therefore refuse the reclaiming motion and pronounce decree in the terms indicated.