Judge grants petition to remove ‘Independence Camp’ after rejecting protestors’ human rights claim



Lord Turnbull
Lord Turnbull

A legal bid to remove the so-called “Independence Camp” from the grounds of the Scottish Parliament has been granted after a judge in the Court of Session ruled that such a move would not breach the protestors’ human rights.

Lord Turnbull held that the order sought by the petitioners was “proportionate” and that the interference with the “Indycampers” rights was “limited”.

The court 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 its property since the end of November 2015 “without right or permission to do so” and who had publicly stated that they intended to remain their “until Scotland declares itself an independent country”.

In an earlier decision underlying the merits of the action, the judge 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.

On the behalf of the petitioners, it was submitted that the presence of the respondents interfered with the “proper functioning” of the parliament, that they “interfered” with the rights of others to use the grounds, that they caused “damage” to the grounds and that their presence served as a “magnet” for others to use the grounds inappropriately.

While it was accepted that the grant of the order sought would constitute a restriction on the article 10 and 11 rights of the respondents, the petitioners argued that this was a “reasonable and proportionate restriction” since 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 simply go to the “manner” in which they were able to exercise that right.

One of the campers, Richard McFarlane, advanced what the judge described as a “fairly stark proposition”.

His contention was that, contrary to the findings in Lord Turnbull’s original decision, he and the others who occupied the camp had the “complete right to do so” – an assertion based upon the contention that “Jesus Christ in his second coming” was “within the camp and has granted his permission to occupy the grounds”.

Mr McFarlane also lodged a statement addressed “To ALL the people who are acting as judges in Scotland”, which stated that there was an affidavit attached signed “Christ – King of Scotland”.

The so-called affidavit stated that the author, “Christ on his second coming”, was “present in court” and that as “owner of the whole world” he had given the Indycampers his “permission to occupy his land and buildings”.

It went on to state that judges were “frauds”, having “no authority” to judge anyone or to decide any matter, that their oaths were “null and void”, and that they and their “fraudulent Queen” were “guilty of capital crimes and should all be executed”.

“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,” Lord Turnbull said.

Another camper, Garry Mitchell argued that the rights which the respondents were exercising were of such importance that they ought to “outweigh” any competing rights held by the petitioner, and that the rights being exercised by the respondents did not conflict with, or interfere with, the ability of others to exercise relevant rights on the grounds.

Advocate Jamie Gardner, acting for some of the other campers, submitted that 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”.

However, the judge ruled that the respondents’ activities on the petitioner’s property were “interfering” with its own rights and with the rights of the public and that the order sought met a “pressing social need”.

In a written opinion, Lord Turnbull said: “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 petitioner’s policy on such conduct.

“The order sought by the petitioner 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.

“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.”

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