Court rules independence camp '˜cannot be evicted' from Holyrood

THE MEMBERS of the 'independence camp' at the Scottish Parliament have won a reprieve in a legal battle to have them evicted from outside Holyrood.

Thursday, 5th May 2016, 3:54 pm
Updated Thursday, 5th May 2016, 5:22 pm
Supporters gather at the independence camp near the Scottish Parliament. Picture: Steven Scott Taylor
Supporters gather at the independence camp near the Scottish Parliament. Picture: Steven Scott Taylor

Judge Lord Turnbull ruled on Thursday that the Scottish Parliamentary Corporate Body cannot force the indie campaigners to leave parliament grounds at this point in time.

In a written judgement issued at the Court of Session, Lord Turnbull wrote that he couldn’t give the corporate body permission to evict the campers.

He said that to do so may breach Article 10 of the European Convention on Human Rights - the right to freedom of expression.

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It may also breach article 11 - the right to freedom to assemble.

The judge has ordered that a further hearing should take place at the Edinburgh court to assess whether the campers rights would be breached if they were evicted.

But Lord Turnbull - who heard legal submissions from representatives from the Sovereign Indigenous Peoples of Scotland in March - urged campaigners to seek legal representation ahead of the new hearing.

In the judgement, Lord Turnbull said that much of what was submitted to the court by the two campaigners who addressed him then wasn’t competent or relevant.

He added: “I recognised that neither participant had the benefit of legal training but that nevertheless each had taken their time to construct what appeared to them to be convincing arguments and to reduce these to written form.

“Whilst that was helpful, unsuprisingly perhaps, much of what was said was in the nature of a philosophical analysis of what the law ought to be, viewed from a particular political perspective, rather than a process of vouching what the law of Scotland actually provides for.

“I also recognise that neither participant had the training and skill to be expected by of an experienced court room practitioner and I therefore mean no disrespect in saying that I can only attempt to provide a summary of what I understood their principal contentions to be.

“Had the respondents been legally represented, I imagine that the tenor and scope of the hearing would have been quite different.

“However, I would also have expected any competent legal advisor to have identified that rights under the convention were engaged and to have recognised the importance of focussing argument to that effect.

“I understand that the question of obtaining legal aid may have been raised with the respondents at an earlier hearing.

“There are also other avenues through which legal representation can be obtained. It would be to the respondents advantage to make whatever efforts they can to enable them to have their interests presented to the court in a competent and properly informed manner, through qualified legal assistance prior to the next stage in this litigation.”

In March, campaigners told Lord Turnbull that Holyrood parliamentarians didn’t have the legal right to evict them.

They claimed the Scottish Parliament’s Corporate Body held power on behalf of the people of Scotland.

They argued that the Corporate Body couldn’t have them evicted because it would contravene the 1707 Treaty of Union.

The campaigners claimed that the treaty of union only allows laws to be passed which are beneficial to the people of Scotland.

The campers claimed that to evict them would go against the interests of the Scottish people. They also claimed that the grounds in which they are camped out on belong to the Scottish public.

The campers claimed the public land was violated. They say this was because Murray Tosh, the Parliament’s former Presiding officer, allegedly purchased the ground illegally when Holyrood first opened.

One campaigner told the court that he wanted to ask Mr Tosh about his “ownership” but was unable to find him.

Independence campaigner Patricia Polley told the court: “The parliament is the representation of the will of the people.

“Holyrood is common land. It was bought and paid for by the people of Scotland.

“It would be wrong to allow the people in the camp to be evicted. It would not be in the interests of the people of Scotland.”

Ms Polley was addressing the court as 110 supporters of the camp were present in court to hear her arguments.

She spoke on what would have been the first day of an independent Scotland. Many supporters of the camp came to court dressed in kilts. Some wore Saltire flags on their backs.

Advocate David Thomson, acting for the Scottish Parliament, told the court that his clients were legally entitled to evict the campers.

Dismissing claims that the Parliament was trying stop people from exercising their right to protest, Mr Thomson added: “It is not an attempt to prevent people from exercising their right to protest, their freedom to assemble or their freedom to protest.

“It is an attempt to prevent unfair encroachment on land.”

In his judgement, Lord Turnbull wrote: “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 belonged to the people of Scotland and was owned in common by them has no legal substance.

“It may therefore be more accurate to say that the Scottish Parliament was paid for by the taxpayers of the United Kingdom.”

However, Lord Turnbull ruled that the court would need to be satisfied that the ECHR rights of the campers wouldn’t be breached with eviction.

In the judgement, he wrote that the court would need to be satisfied that the campers article 10 and article 11 rights weren’t being breached.

Lord Turnbull wrote: “These considerations appear to apply equally to the circumstances discussed before me. In my opinion, articles 10 and 11 are engaged in present proceedings.

“The rights recognised in these articles are vitally important. They are nevertheless subject to some constraints, which include restrictions, provided they are prescribed by law and necessary in a democratic society.

“Restrictions operating in, for example, the interests of public safety or the protection of the rights and freedoms of others might be supported by the court.

“The question for me would be whether the interference with the respondents’ rights entailed in granting an order would be lawful, necessary and proportionate.

“It follows that the respondents are entitled to have the proportionality of the making of the order sought by the petitioner assessed by the court.”

The date for this future hearing is yet to be arranged.