Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 65

 

P1351/15

OPINION OF LORD TURNBULL

In the Petition of

SCOTTISH PARLIAMENTARY CORPORATE BODY

Petitioner;

against

(FIRST) THE SOVEREIGN INDIGENOUS PEOPLES OF SCOTLAND

(SECOND) ARTHUR MCMANUS GEMMELL

Respondents:

for an order under section 46 of the Court of Session Act 1988

 

Petitioner:  D.M. Thomson, Advocate;  Brodies LLP

First Respondent:  P Polley;  Lay Representative

Second Respondent:  Party

5 May 2016

Introduction

[1]        This action arises out of the presence of a group of individuals camped within the grounds of the Scottish Parliament calling themselves “The Independence Camp” (“the Camp”).  The petitioner seeks an order for removal of those within the camp.  

[2]        The proceedings commenced in December 2015, when an interlocutor granting warrant for service of the petition was pronounced, along with an order that interested parties should lodge answers thereto, if so advised, within 21 days.  In due course, answers opposing the grant of an order were lodged by a group calling itself “The Sovereign Indigenous Peoples of Scotland” and by a Mr Arthur McManus Gemmell, in which he designs himself as “A Member of the Government of Scotland”.  After a period of adjustment the action called at a procedural hearing on 9 March 2016. At that hearing parties were ordained to lodge written submissions, together with any productions and case law upon which they wished to rely, and a hearing on the petition and answers, to consist of a legal debate, was fixed for 24 March 2016. 

[3]        The action is based on the contention 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.  It is averred that the Camp comprises around six tents, a caravan, various motor cars, a storage container, wooden pallets, a power generator and an open fire or brazier.  It is averred that the Camp has been occupied continuously since November 2015 and 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.  It is also averred that the intention of the organisers of the Camp is that it should grow to have at least 100 persons occupying it.  

[4]      At the debate Mr Thomson, advocate appeared for the petitioner.  I granted a motion made in terms of Chapter 12B.1 of the Rules of Court permitting Ms Patricia Polley to address the court on behalf of the first respondents and Mr Gemmell appeared on his own behalf.  The issue for me to adjudicate upon was focussed in the petitioner’s first plea in law, the only plea I was moved to sustain.  It was in the following terms:

“The respondents’ averments being irrelevant et separatim being materially lacking in specification, the Prayer of the Petition should be granted de plano.”

 

The legal basis upon which the petitioner seeks an order from the court
[5]        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.”

 

[6]        Schedule 2 of the Scotland Act provides that the corporation may hold property.  The petitioner avers that it is the registered proprietor of the heritable subjects known as and forming The Scottish Parliament, Edinburgh, EH99 1SP, being the subjects registered in the Land Register of Scotland under Title Number MID79950.  A Registers Direct printout from the Land Register of title MID79950 confirms that the Scottish Parliamentary Corporate Body is the proprietor of the subjects known as “The Scottish Parliament”. The areas of ground owned are defined by reference to an Ordnance Map which has also been produced.  The petitioner has identified the area of ground on which the Camp is located as being towards the south east corner of the grounds occupied by the Scottish Parliament, and near to the roundabout on Queens Drive which sits between its property and the grounds of Holyrood Park. 

[7]        The petitioner submitted that, like any other owner of property, it was entitled to the exclusive use and possession of its property and to resist any encroachment made within its boundaries.  The concept of trespass was recognised by the law of Scotland as a temporary intrusion onto the lands of another without his permission, and any trespass which was more than transient was defined as encroachment.  Both were illegal wrongs which a landowner was entitled to take action to prevent.  Reference was made to Rankine, The Law of Land Ownership in Scotland, pages 134 – 139, Bells Principles, sections 940 – 944, Gloag & Henderson, The Law of Scotland (13^th Ed, 2012), paragraph 34.15 and W.M Gordon, Scottish Land Law (3^rd Ed, 2009), paragraph 13 – 09. 

[8]        Section 40(1) of the Scotland Act gives power to the petitioner to bring proceedings on behalf of the Scottish Parliament.  Section 46 of the Court of Session Act 1988, provides that where a party in any proceedings before the court has done an act which the court might have prohibited by interdict, the court may ordain that party to perform any act which may be necessary for reinstating the other party in his possessory right.  The petitioner avers that as the owner of the property it would have been entitled to interdict the establishment of the Camp by persons with no right or permission to occupy a part of its property and is therefore entitled to ask the court to make the order sought.  It was submitted that there were no other restrictions upon the petitioner’s rights which would prevent the order sought from being granted, and that the content of the answers lodged on behalf of the respondents were entirely irrelevant and disclosed no stateable answer to the petitioner’s claim.

 

The basis upon which the grant of an order is opposed by the respondents

[9]        The answers lodged on behalf of the respondents 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. 

[10]      At the substantive hearing I was addressed by Ms Polley and by Mr Gemmell.  Written submissions were prepared by each and, in the case of the first respondents at least, the contentions which they sought to advance became more obvious.  I recognise that neither participant had the benefit of legal training but that nevertheless each had taken the time to construct what appeared to them to be convincing arguments and to reduce these to written form.  Whilst that was helpful, unsurprisingly 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 of an experienced courtroom 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.

 

First Respondents
[11]      Whilst recognising the legal status of the Scottish Parliamentary Corporate Body, and recognising the rights of a public body, or other non-natural entity, to own property and exercise other private rights, the first respondents contended that any right of property vested in the petitioner could not be equated to the right in property held by a private individual.  Since the Scottish Parliament had been paid for by the Scottish taxpayer, any land or property which it owned through the petitioner belonged to the people of Scotland and was owned in common by them.  The petitioner was the embodiment of the Scottish Parliament and was therefore required to act in the interests of the “body public.”  As a public body the petitioner was not able to assume private rights which were in conflict with the public interest and its purely administrative role meant that it could only exercise its property rights to a limited degree, and only for the public good. 

[12]      The open area around the Scottish Parliament building, upon part of which the Camp was located, comprised an area of common ownership, which the Scottish people had freely accessed for centuries. The attempt by the petitioner to seek an order of the court in the present action, if successful, would therefore constitute an act of dispossession.  To put the matter another way, to grant the petitioner’s request for an order would diminish the rights and freedoms historically enjoyed by the Scottish people. 

[13]      The answers lodged on behalf of the first respondents contained no factual or legal propositions in support of their submissions concerning the nature of the ownership of the land under discussion, or the limitations on the property rights of a public body which they contended for, other than, it seemed, to place reliance on The United Nations Declaration on the Rights of Indigenous People of 2007.  No legal or factual foundations for their propositions concerning the ownership of the property around the Scottish Parliament were identified in their submissions to the court. 

[14]      Much of the content of the first respondents’ answers concerned propositions as to what they called the Treaty of Union.  For ease of understanding I will also use that phrase.  Propositions were advanced as to the constitutional standing of the Treaty of Union and the sovereignty of Parliament.  It was not easy to understand what effect the first respondents were contending for in reliance on these propositions.  For example, in answer 1 they stated that they were not asking the court to rule on the legitimacy of any Act of Parliament, nor arguing that the Scotland Act or any other Act passed by either the Westminster Parliament or the Scottish Parliament was wrongful or invalid.  In other passages of their answers it was argued that, in certain circumstances, legislation enacted by either Parliament would be incompetent, unlawful and unenforceable, and that the court would have jurisdiction to determine the competence of such legislation. 

[15]      In oral submissions it was argued that the court had authority to determine whether Parliament had gone beyond its powers in enacting any particular piece of legislation.  Article 18 of the Treaty of Union provided (reading short) that no alteration could be made for Scotland in laws which concerned private rights, except if made for the evident utility of the subjects within Scotland.  Both the Westminster Parliament and the Scottish Parliament were bound by the terms of the Treaty of Union and neither could act in a manner which was inconsistent with the terms of that Treaty. 

[16]      Any right given to the petitioner by statute which purported to give it the power to undermine any rights previously enjoyed by the people of Scotland was not in conformity with the Treaty of Union.  Insofar as the Scotland Act had provided for the creation of the Scottish Parliamentary Corporate Body, with the power to own property, it had not done so in a way which was for the evident utility of the Scottish people.  The court was therefore able to declare that this Act of Parliament, and indeed any other Act of the Scottish Parliament, or the Westminster Parliament, which was not enacted for the evident utility of the Scottish people was invalid. 

[17]      The argument as to the limitation imposed upon Parliament by the Treaty of Union appeared to encompass not only the Westminster Parliament’s powers in enacting the Scotland Act but also the exercise by the Scottish Parliament through the petitioner (as the respondents saw it) of legal powers relating to its property. 

[18]      As mentioned above, The United Nations Declaration on the Rights of Indigenous Peoples was relied upon in the first respondents’ answers and submissions were made under reference to it at the oral hearing.  The Declaration was said to provide that indigenous peoples had the right to maintain and strengthen their distinctive relationship with their traditionally owned or occupied lands and other resources, and had the right to redress or compensation for lands, territories and resources which had been confiscated, taken, occupied etc without free, prior and informed consent. 

 

Second Respondent
[19]      In his opening address to the court Mr Gemmell wished to make motions to reclaim various interlocutors previously pronounced and to ordain the petitioner to lodge caution.  None of these motions were competent and I did not entertain them.

[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. 

[21]      The second respondent did not accept that the petitioner had any valid title to the property of the Scottish Parliament, or the surrounding ground, as the title which had been produced was patently incorrect, in his view.  In any event, and despite what was said about the public nature of the ground, the registered owner was said to be a Mr Murray Tosh, a former Conservative MSP, as was vouched by a copy of the list of business addresses held by Messrs Dun and Bradstreet.

[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.

Discussion
Ownership of the grounds concerned
[24]      The assertion that a non-natural entity could not own or exercise rights in relation to property is plainly wrong, as is the assertion that laws do not govern such entities.  The law of Scotland, as with other jurisdictions, has long recognised the legal status of non-natural entities such as Limited Companies and the right of such bodies to own property and to exercise rights of ownership.  

[25]      Section 3 of the Interpretation Act 1978 provides that:

“Every Act is a public Act to be judicially noticed as such, unless the contrary is expressly provided by the Act.”

 

[26]      I am therefore bound to recognise that the petitioner is the Scottish Parliamentary Corporate Body, as constituted by section 21 of the Scotland Act 1998.  Furthermore, I am bound to recognise by the terms of that section, and Schedule 2 of the Act, that the petitioner is entitled to hold or own property.  The petitioner has produced a copy of its registered title and section 105 of the Land Registration Etc. (Scotland) Act 2012 provides for the evidential status of such copies.  That section provides that an extract or certified copy of the title sheet is to be accepted for all purposes as sufficient evidence of the contents of the original.  The respondents’ bare averments (made in both sets of answers but only advanced in argument by the second respondent) that the property is owned by Mr Murray Tosh is insufficient to raise any issue for adjudication in the absence of any offer to establish this in a competent manner.  The reference to the Dunn and Bradstreet entry is irrelevant and does not displace the effect to be given to the copy registered title.

[27]      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 therefore belonged to the people of Scotland, and was owned in common by them, has no legal substance.  

[28]      There was in any event no analysis of the contention that the Scottish taxpayer could be identified as the sole contributor to the cost of the Parliament.  Section 64 of the Scotland Act provides that there shall be a Scottish Consolidated fund into which the Secretary of State shall make payments out of money provided by Parliament (Westminster).  The sums provided by the Westminster Parliament into the Scottish Consolidated fund were known as the “Scottish Block” and were calculated according to what was known as “The Barnett formula”.  In paragraph 2.39 of the 2004 Holyrood Enquiry report by the Rt. Hon. Lord Fraser of Carmylie, it is noted that the start-up and running costs of the Scottish Parliament were met from the “Scottish Block”.  It may therefore be more accurate to say that the Scottish Parliament was paid for by the taxpayers of the United Kingdom. 

[29]      I am therefore satisfied that the petitioner is the legal owner of the property known as the Scottish Parliament and the surrounding grounds as defined in the copy title produced and as shown on the associated map.  It is inherent in the nature of the answers lodged on behalf of the respondents, and in the submissions they made to the court, that the Camp is presently located on part of the grounds owned by the petitioner. 

[30]      This conclusion concerning the legal ownership of the property and grounds concerned is sufficient to permit me to reject the respondents’ other contentions that the grounds concerned comprise open public parkland, or grounds held in common ownership.  The fact that an area of grassland, or the like, is unfenced and that the public are permitted to access it, does not exclude private ownership.  Many proprietors of open land are prepared to tolerate public access and use to a greater or lesser extent.  I shall however revisit the various arguments advanced concerning rights to access, or to occupy, the grounds of the Scottish Parliament later in this opinion.

 

The rights of a property owner
[31]      The submissions made for the petitioner concerning the property rights of a legal owner were vouched by the authorities to which Mr Thomson referred.  The contention that the law of Scotland does not recognise the concept of trespass was advanced despite the contrary explanations in the passages which were read in court from Rankine, The Law of Land Ownership in Scotland and W.M. Gordon, Scottish Land Law.  Whilst the second respondent repeatedly attempted to vouch his contention by reference to what he claimed had been said by Lord Trayner in the case of Wood v North British Railway (1899) 2F 1, the words he relied upon simply do not appear in the report and I think he has taken them from some other source^[1].  

[32]      It would not have taken long to read the three page report of what was a straightforward case and doing so would have been sufficient to allow the reader to appreciate that the law as explained there was the opposite of that contended for by the second respondent.  A short summary may suffice to explain.  The case concerned a civil action for damages by a cabman who was taken into custody by railway constables employed by the defenders and removed from Waverley Station to a police office.  The civil jury trial was presided over by the then Lord Justice-Clerk, who gave the following direction in the course of his charge to the jury: 

“That when a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are at common law entitled to remove him by force if necessary.” 

 

[33]      On appeal it was contended that this direction was wrong for a variety of reasons but the court concluded that it was a perfectly sound direction.  In the course of the debate Lord Trayner observed that:

“The notion, often expressed, that there is no such thing as trespass in the law of Scotland, and that if a man is, contrary to the desire of the proprietor, on private property he cannot be removed, seems to me to be a loose and inaccurate one.”

 

[34]      The broad contention argued for by the second respondent is further undermined by the very title of the Trespass (Scotland) Act of 1865.  As amended by the Land Reform (Scotland) Act 2003, section 3 of the 1865 Act provides as follows: 

“(1) every person who lodges in any premises, or occupies or encamps on any land, being private property, without the consent and permission of the owner or legal occupier of such premises or land, and every person who encamps or lights a fire on or near any road or enclosed or cultivated land, or in or near any plantation, without the consent and permission of the owner or legal occupier of such road, land, or plantation shall be guilty of an offence punishable as herein-after provided.

 

(2) Subsection (1) above does not extend to anything done by a person in the exercise of the access rights created by the Land Reform (Scotland) Act 2003 (asp 2).”

 

[35]      For the reasons given, I conclude that the Scotland Act 1998 gave the petitioner a right to acquire property.  I further conclude that the general law of land ownership in Scotland entitles the petitioner to have exclusive use of its property, to resist encroachment upon it and to otherwise regulate the use of its property. 

[36]      I am satisfied that the petitioner’s unchallenged averments establish that the presence of the Camp constitutes trespass and encroachment on the petitioner’s property.  I am further satisfied, as vouched by W.M. Gordon, Scottish Land Law paragraph 13.09, that an interdict may be sought against a trespasser who does not leave.  In light of the conclusions set out in this and the immediately preceding paragraph, I am satisfied that it would be competent for me to grant the order sought under section 46 of the Court of Session Act 1988. It remains to be seen whether the respondents other arguments raise any relevant case which might render it inappropriate to grant the order. Those arguments concern, the power of Parliament to legislate as it has, the restrictions on the exercise of the petitioner’s property rights and the arguments as to other rights to access, or to occupy, the grounds under discussion which the respondents claim to hold. 

 

The power of the Scottish and Westminster Parliaments
[37]      The principal contention advanced on behalf of the first respondents related to the extent to which they claimed the court had the authority to review the validity of legislation passed by Parliament. 

[38]      In so far as it was recognised that the petitioner was able to exercise rights in property, it was contended that it had been given an administrative role by the legislation responsible for its creation and it was only entitled to exercise any property rights in so far as it did so for the public good and in the interests of what was called “the body public.”  This, it appeared to me, was part of the more general argument that the legislative competence of either Parliament was governed by the Treaty of Union and that the court could review the competence of a legislative provision by assessing compliance with the terms of the Treaty and in this way determine the lawfulness of any such legislation. 

[39]      The argument was based upon the terms of Article 18 of the Treaty of Union, the terms of which are familiar to historians, legal academics and commentators and to the courts which have considered its import on a number of occasions.  The Article reads as follows:

“That the Laws concerning Regulation of Trade, Customs and such Excises to which Scotland is by virtue of this Treaty to be lyable be the same in Scotland from and after the Union as in England, and that all other Lawes in use within the Kingdom of Scotland do after the Union and notwithstanding thereof remain the same as before (except such as are contrary to or inconsistent with this Treaty) but alterable by the Parliament of Great Britain With this difference betwixt the laws concerning publick Right, Policy and Civil Government and those which concern private Right That the Laws which concern publick Right Policy and Civil Government may be made the same throughout the whole United Kingdom but that no alteration be made in Laws which concern private Right except for the evident utility of the subjects within Scotland.”

 

[40]      With this background in mind, the argument seemed to be this.  By enacting the provisions of section 21 of the Scotland Act, Parliament had provided for the creation of a corporate body with the power to own property.  The grant of this power by legislation was, however, not an act undertaken by Parliament for the evident utility of the Scottish people.  This was said to be obvious from the fact that the corporate body was seeking to exercise the right to own property, given to it by legislation, in a way which undermined the right previously enjoyed by the people of Scotland freely to access the lands now owned by the petitioner.  

[41]      To allow the petitioner to obtain an order in terms of the Court of Session Act requiring the respondents to remove themselves from the property would be to diminish the rights and freedoms historically enjoyed by the Scottish people. Since this would be the effect, the petitioner was seeking to exercise a right, given to it by statute, in a manner which altered the rights of the Scottish people and was not for the evident utility or public good of the people.  It followed (so ran the argument) that the legislative provision which underpinned the petitioner’s conduct was incompatible with the terms of Article 18 of the Treaty. 

[42]      Whilst this argument concentrated on the terms of Article 18 of the Treaty of Union, its starting point was the proposition that there were some rights held by the respondents, or by the people of Scotland in general, which had been infringed or altered in some manner to their detriment.  The respondents of course pointed to their claim that the grounds of the Scottish Parliament comprised open public land, or land held in some form of common ownership, to which they had a right of free access and use.  Throughout the respondents’ entire contribution to the proceedings it seemed to be assumed that this assertion was beyond dispute.  There are, however, no relevant averments in either set of answers upon which any such right could be established.  All that one can detect from the answers is that common ownership is said to arise by virtue of the propositions that, the people of Scotland are embodied in and represented by the Scottish Parliament in all its visible manifestations – answer 19, that there is no requirement under Scots Law for the Sovereign Indigenous Peoples to seek permission to use the land of their birth – answer 2, or that The United Nations Declaration on the Rights of Indigenous People 2007 granted some sort of right to land – answers 1, 4, 5, 9 & 10.  

[43]      I shall touch upon The United Nations Declaration below. For the meantime it is sufficient to state that none of these averments offer a valid foundation for a claim of common ownership, or any other right to property legally owned by the petitioner.  No further legal basis for the presence of any such right as claimed by the respondents was identified in submissions to the court.  

[44]      The respondents therefore cannot point to any relevant right held by them, or the people of Scotland generally, such as is recognised by law and which has been diminished or affected by the enactment of the Scotland Act, or by the petitioner’s conduct in seeking an order for their removal.  The underlying contention upon which the respondents advance their argument about the impact of the Treaty of Union therefore has no force and this is sufficient to permit me to dismiss the respondents’ argument as based upon it. 

[45]      It was this part of the respondents’ submissions which they expressed the most interest in though and it is only fair that I should say something about it.  In the case of MacCormick v Lord Advocate 1953 SC 396, it was held by the Inner House, with Lord President Cooper presiding, that the court had no jurisdiction to determine whether a governmental act which concerned public right was or was not conform to the provisions of the Treaty of Union.  This contradicts the broad claim made by the first respondents that any act of Parliament which was not for the evident utility of the Scottish people could be challenged before the court.  However, the Lord President reserved his opinion on whether the court would have jurisdiction to consider the question of whether legislation concerned with private right was incompatible with the Treaty. 

[46]      The narrower argument relating to legislation concerning private rights would raise important constitutional issues involving the sovereignty of the United Kingdom Parliament which were not addressed to any meaningful extent in the submissions before me.  It is not sufficient to make sweeping general statements about restrictions on the sovereignty of Parliament and the status to be attached to what the respondents call the Treaty of Union.  The issue is far more complicated, both legally and historically, than is recognised in the respondents’ submissions.  This can be seen from the observations made by the judicial members of the House of Lords Committee for Privileges in their report on the question of Lord Gray’s Motion, as reported in 2000 SC [HL] 46.  In particular, the opinion of Lord Hope of Craighead contains an analysis which demonstrates that very little of what the respondents so frequently and confidently asserted about the Treaty of Union (even whether it is properly described as any form of Treaty) is free from legal controversy. 

[47]      In these circumstances, and having already decided that the underlying precondition for the argument is absent, it is neither necessary nor appropriate for me to make any further decision.  I would make one observation though.  The respondents were aware of Lord Keith’s opinion in the case of Gibson v Lord Advocate 1975 SC 136, where he said the following: 

“I am, however, of opinion 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 in this Court. The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be. The function of the Court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the State. A general inquiry into the utility of specific legislative measures as regards the population generally is quite outside its competence.”

 

[48]      The first respondents’ answer was that Lord Keith was wrong and they say that the matter is straightforward.  Whenever it could reasonably be said that the application of any statute will reduce the benefits under law for the people of Scotland then the matter falls for adjudication by the court.  What would be meant by “reasonably” in such a context and said by whom remained unanswered.  More fundamentally though, the respondents had no answer to the question of what process a judge would go through, or what test he or she would apply, in order to determine whether a particular piece of legislation was or was not “for the evident utility” of the people of Scotland.  Ms Polley, speaking on behalf of the first respondents, sought to advance this argument but had no answer to the question, and despite repeated challenge from the court, simply chose to ignore it.  To my mind this illustrates the force of Lord Keith’s observation that the question of what is “for the evident utility” of the people is a matter of political judgement and not one which is justiciable before the court. 

 

The United Nations Declaration on the Rights of Indigenous Peoples
[49]      As I drew attention to above, The United Nations Declaration featured heavily in the written submissions for the first respondents.  It is fair to recognise that in the course of discussion on the subject Ms Polley conceded that the Declaration was of no assistance.  However, it was not plain to me what the second respondent’s position on this was and it would perhaps be best if I deal with the matter. 

[50]      Reliance appeared to be placed on Article 25, which provides, reading shortly, that indigenous peoples have the right to maintain their distinctive spiritual relationship with traditionally owned or otherwise occupied and used lands.  Reliance may also have been placed on Article 26, which provides, again reading shortly, that indigenous peoples have the right to lands traditionally owned and occupied along with the right to own and use land possessed through traditional ownership or other traditional occupation or use.  Reliance was placed on Article 28, which provides, again reading shortly, that indigenous peoples have the right to redress for lands traditionally owned or otherwise occupied or used which are confiscated, taken or occupied without their free, prior and informed consent. 

[51]      United Nations conventions such as this are not binding in international law and create no rights which can be enforced before domestic courts – see International Law, 7th Ed. by Professor Malcolm Shaw, and International Human Rights Law and Practice by Bantekas and Oette at paragraphs 2.2.4 and 2.2.5, where the Declaration on the Rights of Indigenous Peoples is discussed. 

[52]      Moreover, this United Nations convention was entered into in an effort to provide protection for particular groups of individuals who had suffered through oppression and domination.  The respondents had a completely misguided understanding of what “indigenous” meant in the context of the Declaration.  They saw it as an instrument which would benefit the entire population of Scotland, or at least that part of the population of Scotland which defined itself as Scottish. As one would expect though, this is not what those responsible for framing The United Nations Declaration had in mind.  Although the document itself does not contain a definition of “Indigenous Peoples”, recognised and accepted definitions are available.

 

[53]      The 1986 Martinez Cobo^[2] definition is as follows:

“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.”

 

[54]      The International Labour Organisation Convention No. 169 of 1989 Concerning Indigenous and Tribal Populations in Independent Countries defines indigenous people as: 

“(a)      tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

 

(b)        peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

 

[55]      Each of these definitions is given in the Manual on The United Nations Declaration prepared for National Human Rights Institutions by the UN Office of the High Commissioner for Human Rights.  It is perfectly clear that any attempt on the part of the respondents to oppose the order sought by placing reliance on The United Nations Declaration on the Rights of Indigenous Peoples is entirely misplaced.

 

Other Considerations
[56]      Having held that the petitioner is the valid proprietor of the grounds on which the Camp is located, that the respondents have no lawful right to encroach upon the petitioner’s property, and that the arguments concerning the impact of the Treaty of Union have no foundation, I require to determine whether there are any other considerations which I should take into account in deciding whether or not to grant the order sought. 

[57]      Two such considerations are recognised by the petitioner itself.  The first is the impact, if any, of the Land Reform (Scotland) Act 2003 (“the 2003 Act”) and the second is the compatibility of making an order such as is sought when seen alongside the rights guaranteed by articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

 

The 2003 Act
[58]      In the answers lodged by the first respondents passing reference is made to the right of access conferred by section 1 of the 2003 Act.  No reference to this Act appears in the answers lodged by the second respondent.  No direct reference to the statutory right of access was made by the respondents in oral submissions, although Mr Gemmell made reference to the Scottish people having a right to roam in the context of his submission concerning the absence of any law of trespass.  Given that no direct reliance was placed on the 2003 Act, it will be sufficient to note that the right of access given by section 1 is a right to be on land for limited purposes, as defined within that section, none of which are present in the circumstances of the occupation by the Camp. 

 

The Convention
[59]      More difficult considerations arise in the context of the Convention.  Mr Thomson recognised that the petitioner is a public authority for the purposes of section 6(3) of the Human Rights Act 1998, with the consequence that it is unlawful for it to act in a way which is incompatible with a convention right.  The petition itself contains detailed averments concerning the procedures which are in place to permit peaceful protests to be held upon the grounds of the Scottish Parliament and averments describing the published Code of Conduct concerning protests at the Parliament with which the respondents have failed to engage.  Averments concerning the extent to which access to the grounds is available to members of the public generally and the petitioner’s concern to prevent the permanent occupation of part of the grounds by one particular group with an obvious political connection are also made.  Attention is drawn to events due to take place at the Scottish Parliament in the coming months.  The Scottish Parliamentary Elections and the opening ceremony for the fifth session of the Scottish Parliament are due to take place in May and July of this year and various associated security and logistical concerns are identified which are said to arise out of the continued presence of the Camp. 

[60]      In light of these issues and concerns Mr Thomson submitted that the exercise by the petitioner of its right to regulate the use of its land by seeking the present order would be a right which was prescribed by law, which furthered a legitimate aim and which was proportionate and necessary.  He drew attention to the absence in the answers of any positive reliance by the respondents upon any claim of interference with their convention rights and submitted that there were therefore no averments of facts made by the respondents which could permit the court to perform a proportionality balancing exercise. 

[61]      It is obvious that those forming the Camp have a political objective.  It is the promotion of the cause of Scottish independence.  In oral submissions the first respondents described themselves as engaging in a vigil as a legitimate exercise of freedom of speech, right of assembly and freedom of political expression.  They submitted that the site of the Scottish Parliament was the most obvious and appropriate location for a peaceful vigil of Scots.  They pointed to the history of other vigils, at St Andrews House in Edinburgh and at the Faslane Naval Base, as evidence of the acceptance of this form of political protest. They denied that they interfered with the right or ability of others to use the Parliament grounds and drew attention to the rights guaranteed by articles 10 and 11 of the Convention.  In oral submissions the second respondent stated, somewhat confusingly, that:  “There are no attempts to invoke any convention rights”^[3]. However, in his answers he stated that those involved in the Camp are exercising their fundamental human rights.

[62]      Despite the lack of any detailed references to the exercise of Convention rights within the answers lodged on behalf of the respondents, or indeed any detailed examination of the issue in submissions to the court,  it seems to me that what was said on behalf of the first respondents was sufficient to bring the matter of convention rights into sharp focus. Articles 10 and 11 provide as follows:

“Article 10

 

Freedom of expression

 

1.         Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

 

2.         The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

Article 11

 

Freedom of assembly and association

 

1.         Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

 

2.         No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the Armed Forces, of the police or the administration of the State.”

 

[63]      In the case of Mayor of London v Hall and others [2011] 1 WLR 504, the court of appeal for England and Wales considered the lawfulness of the grant of an order for possession of Parliament Square Gardens in London made against a group of protestors who had set up a camp within the gardens which they called the Democracy Village.  In giving his opinion, Lord Neuberger, with whom the other judges agreed, said the following at paragraph 37: 

“Accordingly, the defendants’ desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11.”

 

At paragraph 40 he said the following:

 

“The Democracy Village defendants are plainly trespassers on PSG:  rightly, that is no longer in contention, although it was debated before the judge. The defendants’ presence on PSG is also in breach of the bylaws, as the mayor’s consent to their occupation has been refused. Although those are factors to be weighed against them, particularly after what is now more than two months of effectively exclusive occupation, the Democracy Village defendants are still entitled to have the proportionality of both the making of the possession order and the granting of the injunction sought by the mayor assessed by the court as articles 10 and 11 are engaged, not least because it is the mayor, the person seeking the relief who could authorise them remaining lawfully on PSG”

 

[64]      These considerations appear to apply equally to the circumstances discussed before me. In my opinion, articles 10 and 11 are engaged in the 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 or 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.  

[65]      In submissions Mr Thomson relied upon what had been said by the Court of Appeal in the subsequent case of The Mayor Commonality and Citizens of London v Samedi [2012] EWCA Civ 160, arising out of orders issued by the High Court to put an end to a camp located in the St Paul’s Cathedral churchyard.  He drew my attention to what had been said at paragraph 49 of the opinion of the court as follows: 

“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.”

 

[66]      On the face of matters though, the circumstances which I have been asked to consider may be significantly different from those in either the case of Hall or Samedi.  In both of those cases the protesters had assumed exclusive possession of the areas concerned and there was evidence of clear and substantial interference with the rights of others to exercise access to the grounds and, in the case of Samedi, interference with the right of others to worship in the Cathedral.  There was also evidence of damage and other anti-social conduct. 

[67]      In the case of Samedi the court observed that each case turns on its own facts and where Convention rights are engaged case law indicates that the court must examine the facts under a particularly sharp focus.  I have heard no evidence on the extent to which the respondents in the present case do, or do not, constitute an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment.  As a resident of Edinburgh though, I am familiar with the layout of the grounds surrounding the Scottish Parliament building and the general location of the Camp.  As indicated by the petitioner, the Camp presently appears to occupy a small area at the very edge of the grounds which it owns and at the furthest point away from the entrance to the Parliament building.  It is not immediately obvious that the presence of the Camp would inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner.  Nor is it immediately obvious that there are any real security or logistical concerns of the sort drawn attention to by the petitioner and which might weigh the proportionality balance in its favour.  

[68]      The only motion made on behalf of the petitioner at the hearing before me was for decree in terms of the first plea in law.  It is the petitioner’s second plea in law which addresses the appropriateness of granting the prayer of the petition.  I could only uphold the first plea in law if satisfied that there was no relevant answer stated to the claim.  It seems right to bear in mind that I am dealing with an important matter involving public interest in which those against whom the order is sought are not legally represented.  The question of the proportionality of granting the order sought has been raised, in oral submissions at least, and in my judgement this is sufficient in the circumstances to bar me from granting the order sought until satisfied on this matter. 

[69]      I will therefore refuse to grant the prayer of the petition de plano and I will make an order requiring the case to call at a procedural hearing in order to identify the scope of further procedure.  What I anticipate is that a hearing will then be fixed at which the petitioner and the respondents can lead evidence on the issues which they consider relevant to an assessment of the proportionality of the making of the order sought by the petitioner.  At the procedural hearing the parties will require to advise the court which witnesses they wish to lead and which productions they wish to rely on. 

[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.  

[71]      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. 

[72]      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.