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
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Justice Clerk,Lord Glennie |
| Neutral Citation | [2016] CSIH 81 |
| Date | 27 October 2016 |
| Docket Number | P1351/15 |
| Court | Court of Session |
| Published date | 28 October 2016 |
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...
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