Access to land, freedom of expression, and freedom of assembly: the endgame for the #indycamp

The #indycamp at Holyrood is on borrowed time. That much is clear, now that the Court of Session judgment of Lord Turnbull has been published. (See also the BBC News report here.)

I think it would be fair to say that sympathy for the indycampers has dwindled since the camp was established in November last year. (In this vein, see the recent blog post by Andrew Tickell.) Whilst others were steering the intrepid campers to legal arguments that might be worth following (including me and, much more importantly, the judge in the case), the indycampers appealed to religion and seemed to suggest that neither Lord Turnbull nor indeed any other judge had authority over them. With the patience of a saint (that being an appropriate appeal to religion), Lord Turnbull has side-stepped those arguments and essentially given the all clear for the Scottish Parliament to recover possession of the land.

There is much to be found in Lord Turnbull’s words, in terms of legal analysis and perhaps even a slight undercurrent of humour. I heartily recommend reading those words yourself. For the purposes of this blog post, I will extract a number of concluding paragraphs, beginning at paragraph 58, on the interplay between articles 10 and 11 of the European Convention on Human Rights (on freedom of expression and freedom of assembly respectively) and the rights of the landowner. (Note that “respondents” means “indycampers”, while “petitioner” means “landowner”.)

[58]      In essence the respondents’ position seems to be that their rights under articles 10 and 11 should trump both the petitioner’s right to possession and the rights of others to enjoy undisturbed use of the grounds.  This rather selfish or even arrogant approach was well illustrated in two ways.  First, by the way in which the respondents felt able to hold a barbecue and social gathering in and around the area of the camp which they openly advertised on social media.  Second, the affidavits provided, as taken along with the photographs, make it plain that damage has been caused to the grounds of the Parliament by vehicles being parked on the grassed areas and by other means.  In production 6/29 there are a number of photographs showing a significant number of motor cars and other vehicles openly parked side-by-side on the grassed areas of the Parliament and near to where the campers tents and caravans are located.  The photographs show vehicles parked on different days in January of this year and in March of this year.  These vehicles are all parked on the other side of the roadway from a public car park.

[59]      No explanation has been offered to explain this, to my mind, quite remarkable conduct.  It would be perfectly obvious to anyone parking their vehicle on the grassed area of the grounds of the Scottish Parliament that to do so would cause damage.  That conduct displays open disregard for the rights of others to enjoy the grounds in their undisturbed form.  There is nothing in the nature of any of the respondents’ protests or vigils which required them or anyone else to park any, far less so many, motor vehicles on the grassed areas of the Parliamentary grounds.  The adjacent carpark, although requiring payment, provides entirely adequate and suitable parking facilities…

[60]      In the whole circumstances it is clear to me that the petitioner has now established that the respondents’ activities on its property are interfering with its own rights and duties and with the rights of the public and that the order sought meets a pressing social need.

[61]      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.

[62]      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.

[63]      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.

The emphasis (which is mine) at the end of paragraph 63 drives home that the one remaining string to the bow of the indycampers failed to twang. The (public) landowner was not being overzealous in seeking recovery in the circumstances. It was acting within the bounds of proportionality. As such, eight months of camping – if that is the correct word for it – is about to come to an end.

If Scotland ever does become independent from the rest of the UK, posterity might grant this episode of indycamping a footnote, but the real impact of it has been to provide entertaining column inches for the press and useful legal precedent for the future. For that, this blogger is grateful.

Advertisements

About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
This entry was posted in ECHR, Law, Property and tagged , , , , , . Bookmark the permalink.

One Response to Access to land, freedom of expression, and freedom of assembly: the endgame for the #indycamp

  1. Pingback: Access to land and the end of the #indycamp at Holyrood | basedrones

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s