Petition Of The Scottish Parliamentary Corporate Body For An Order Under Section 46 Of The Court Of Session Act 1988

JurisdictionScotland
JudgeLord Turnbull
Neutral Citation[2016] CSOH 113
Year2016
Published date27 July 2016
Date27 July 2016
CourtCourt of Session
Docket NumberP1351/15

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 113

P1351/15

OPINION OF LORD TURNBULL

In the Petition of

SCOTTISH PARLIAMENTARY CORPORATE BODY

Petitioner;

for

an Order under section 46 of the Court of Session Act 1988

Petitioner: Moynihan QC; Brodies LLP

Respondents: Gardner, Advocate; Flanagan & Co Solicitors (for respondents Gibson, Wallace and Halliday)

Party Respondents: McFarlane, Mitchell, Gemmell

27 July 2016

Introduction

[1] I issued my decision on the underlying merits of the present action on 5 May 2016. In that written judgment I gave my reasons for accepting that the petitioner was a legal entity, was entitled to own land and property, and was entitled to enforce its property rights in a court of law. I also gave my reasons for rejecting the various propositions advanced by the respondents in support of their claims to be entitled to occupy the grounds of the Scottish Parliament.

[2] At paragraph [64] of my opinion I 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 I referred to the importance of the rights recognised in these articles of the Convention. I also pointed out that articles 10 and 11 themselves each expressly acknowledge that restrictions on the exercise of the freedoms concerned may be imposed in certain circumstances. I therefore noted that the question for the court would be whether the interference with the respondents’ rights entailed in granting an order such as is sought would be lawful, necessary and proportionate. I therefore explained I had come to the view that the respondents were entitled to have the proportionality of the making of the order sought by the petitioner assessed by the court on the basis of whatever evidence might cast light on this issue.

[3] In paragraphs [69] and [70] I explained that I proposed to permit a further hearing to enable the petitioner and the respondents to lead evidence on the issues which they each considered relevant to an assessment of the proportionality of the making of the order sought. I emphasised that the only remaining issue was proportionality.

[4] After various other procedures, a hearing on that issue took place before me on 29 and 30 June. At an earlier hearing I decided in terms of Rule of Court 14.8 that I would fix a hearing rather than a proof and that I would only consider evidence in the form of affidavits or statements along with other relevant productions. It is plain though from some of the submissions presented at the hearing that the respondents, or some at least of them, refuse to accept the legal findings which I made in my earlier decision. I will return to discuss the submissions presented in due course.

The evidence presented
[5] On behalf of the petitioner affidavits were lodged from Sir Paul Grice, the Chief Executive of the Scottish Parliamentary Service, Roy Devon, the Head of Events and Exhibitions at the Scottish Parliament, Rebecca Thompson, Head of Security at the Scottish Parliament and Victoria Barby, Environmental Performance Manager at the Scottish Parliament. Various documentary productions including photographs of the grounds were also relied upon.

[6] The affidavit from Sir Paul Grice explained that prior to the Parliament being established a report entitled “Shaping Scotland’s Parliament” was prepared by the consultative steering group. In that report the principles of openness and accessibility, applying equally to all people, were identified as being central to the operation of the Parliament. These principles, as taken from the report, were then adopted by the Scottish Parliament on its establishment. The policies which the Scottish Parliamentary Corporate Body implement for the use of the grounds of the Parliament flow from these principles with the consequence that there is a policy of open and equal physical access to the external Parliamentary estate. He explained that proactively encouraging people to come onto the grounds of the Parliament is part of the way in which the Parliament seeks to engage with the people of the country. This policy carried with it a responsibility to ensure equality of opportunity and fairness of treatment which is achieved through the Code of Conduct used to facilitate and support gatherings and protests. That Code provides as follows:

“The Scottish Parliament is an open, accessible and participative Parliament and recognises the importance of peaceful protest in a democratic society. This Code of Conduct has been prepared in order to facilitate effective protest opportunities at the Scottish Parliament and for the safety and convenience of all members of the public planning to participate in a protest at the Scottish Parliament.

The Scottish Parliamentary Corporate Body (SPCB) will ordinarily grant permission to protest on SPCB property, subject to the following conditions. Please remember that this is a working Parliament, and the aim of these conditions is to assist in facilitating an organised and effective protest whilst protecting the rights and interests of the staff, visitors, Members, users and neighbours of the Scottish Parliament.”

The conditions are then set out. Permission is never given for overnight or permanent occupation of the property for residential purposes, as this is seen as fundamentally incompatible with the policies concerning the use of the grounds.

[7] Sir Paul went on to explain the importance to the Parliament of its policy concerning political neutrality. The petitioner considered that it was crucial for the Parliamentary Corporate Body, as the corporate identity of the Parliament, to maintain a distinct political neutrality in order to retain the confidence of the public in the Parliament as an institution serving the public as a whole. In order to achieve this aim the Corporate Body implemented a strict policy of refusing to give permission for the use of its property for party political campaigning.

[8] Having identified the underlying principles governing the use of the grounds of the Parliament, Sir Paul went on to identify the problems and concerns which had arisen as a consequence of the existence of the camp. He observed that the exclusive occupation of part of the Parliament’s land denies anyone else the right to be on that land or to walk across it and disrespects the many other members of the public who use the land appropriately. He mentioned the obvious deterrence to others which the existence of residential space creates and commented on his observations that other users of the grounds tend to avoid not just the area of the camp itself but also the wider area around it.

[9] He commented that the permanent nature of the camp offends against the policy of neutrality and observed that the prominence and proximity of the camp to the Parliament suggests tolerance and tacit acceptance of the views of the campers. The presence of the camp in pre-election and pre-referendum periods was completely at odds with the policy of neutrality and of denying permission for party political campaigning. The permanent nature of the camp also offended against the policy of allowing fair and equal opportunity for all to protest and he drew attention to various requests which have been received from others to permit camping on the estate for both political and recreational purposes, all of which have been denied.

[10] Sir Paul also drew attention to the disruption to the plans for the use of the Parliamentary grounds on the day of the opening session of the new Parliament when it was planned to hold a public entertainment event using the full extent of the campus. The presence of the camp meant that these plans had to be scaled back and take account of security concerns and a health and safety assessment. He also drew attention to the damage which has been caused to the grounds as a consequence of being occupied by caravans, trailers and motor vehicles. On various occasions, as vouched by some of the photographs in the bundle of productions, those attending the camp had driven a significant number of vehicles straight onto the grassed grounds and had simply used them as a free car park, despite the presence of a public car park on the opposite side of the road. He also drew attention to an event, apparently of a social nature, which the organisers of the camp had arranged for Sunday 19 June to which people were invited to attend for a barbecue.

[11] The changing membership of the camp and the variety of views which appeared to be being expressed was also addressed in his affidavit. Sir Paul observed that this made it more difficult to ascertain what the focus of the protest was and made the prospect of a resolution seem more distant. For these reasons he expressed the concern that the camp was operating as a magnet attracting those with different causes.

[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.

[13] The affidavit of Roy Devon provided information concerning the impact which the presence of the camp was expected to have on the events which were scheduled to take place at the Parliament and on its grounds on 2 July 2016. It was anticipated that over 1000 people would require to be accommodated on the landscaped area outside the Parliament as part of the historical procession called the...

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