Public Law in the UK - Coursework Example

Public Law work Introduction: This scenario presents the question of whether the provisions of the Human Rights Act of 1998 can be invoked by Estelle and Gary to challenge the requirement of the Blueberry District Council that the convention proposed by the Children of the Forrest (COTC) group should not involve the use of alcohol or dancing, especially since these activities are vital to the core beliefs of the organization. The Preamble to the Universal Convention of Human rights establishes “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” as the basis upon which its Articles are founded.1 This is the basis for the European Convention on Human Rights, which is echoed in the Bill of Rights of most countries, that uphold human rights and fundamental freedoms.2 The Human Rights Act of 19883 has incorporated the goals of the European Convention of Human Rights within the framework of national law, thereby heightening the tension between political power through legislation vis vis the rights of individual citizens and members of the general public. The past two decades have brought forth harsher legislation4 to deal with the problems of terrorism and deteriorating law and order, which seriously question former Prime Minister John Major’s contention that “we have no need of a Bill of Rights because we have freedom”(Derry, 2004). Therefore, the legal issues that are posed by this scenario which can be raised by Estelle and Gray is whether the individual rights of the group as guaranteed through the Human Rights Act can be allowed precedence over the requirements spelt out by the public bodies. Analysis: The Children of the Forrest group may be classified as a religious organization, since their worship of forests and parks is a part of their religious beliefs, in the same way as the offering of wine is also equated with communion which is a religious ceremony. In the case of Neville Estates Ltd v Madden5 Cross J stated clearly that “as between different religions the law stands neutral but it assumes that any religion is better than none.” Therefore, the fact that this organization is a religious group already means that it may be entitled to some leniency and favor when viewed from the perspective of the law. However, in the case of United Grand Lodge v Holburn B.C6, the definition of religion spelt out certain requirements such as (a) a belief in a supreme being and (b) the belief leading to a moral and upright life. In the case of Yeap Cheah Neo v Ong Cheng Neo7, ancestral worship practices were not deemed to be an advancement of religion, since they did not conform to the theistic requirement. Therefore, public legislation may not be required to accommodate such practices if they are repugnant to public morality in some context, i.e, the naked dancing or serving of too much alcohol which could lead to morally subversive behavior. The Public Order Act of 1986 had introduced some restrictions on public gatherings, camping and other activities, however these provisions as extended into the Criminal Justice and Public Order Act of 1994 to cope with criminal and terrorist elements, has resulted in a wider range of activities being construed as criminal offences (Annonymous, 1995). The Act also allows the police to prohibit any gatherings of more than 20 people on any land “of historical, architectural, archaeological or scientific importance”8 by obtaining an order from a local authority to ban such an assembly if they have a reasonable suspicion that there could be disturbances. Since the Security Services Act of 1996, the meaning of public assembly has taken on a new meaning, because the Security Act of 1996 it sets out a principle of “common purpose” to control the public agenda in the interest of controlling terrorism and public disorder, so that; “conduct which constitutes one or more offences shall be regarded as a serious crime where it involves conduct by a large number of persons in pursuit of a common purpose.”9 It is this definition of common purpose that renders most public assembly potentially criminal. Within the scope of individuals gathering for a “common purpose” are included a wide section of members of the public and the police have been provided with enhanced powers to disperse, detail or arrest members of the public when the police deem it to be a disturbance of the peace. Therefore, taking into consideration the fact that during the convention proposed by the COTF group, there is to be naked dancing and drinking, the Council’s decision to restrict such activity may be deemed to be reasonable in the interest of preserving public order. Application of the ECHR and HRA 1998: The significant aspect that needs to be considered is that the activities of dancing and drinking proposed by the COTF group are a part of their religious worship activity. Under the European Convention of Human Rights, Article 11 specifically states: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others” while Article 9 focuses on the freedom of religion of individuals, which includes the freedom to “manifest his religion or belief in worship, teaching, practice and observance” either in private or in public, either alone or “in community with others.”10 Moreover, with the incorporation of the Human Rights Act of 1998 into national UK law, Section 3 states clearly that Parliament legislation must be read and given effect to in a way that will be compatible with Convention rights “so far as it is possible to do so.”11 The HRA included the objective of upholding fundamental rights of individuals mandated in the Convention by including this provision, while the judiciary has also been given the power under the Act to declare Parliament legislation incompatible with Convention rights.12 This raises the issue of validity of legislation such as the Local Government Act of 1972 and the Licensing Act of 2003 that interferes with fundamental rights of the COTF group to gather in public places and practice their religion - the sole criterion for police interference being noise levels13 or the strength of crowds and their purported potential to cause trouble (Economist 2003). There is a conflict that is posed between the rights of the individual and the laws of the state that are geared towards the protection of public order. One example that may be cited in this context is the Anti Terrorism and Crime and Security Act of 2001 (Hoffman and Rowe 2003), whereby the Government holds the position that a curtailment of civil liberties of individuals is justifiable in order to counter the threat from terrorism, but this position is being increasingly found untenable in view of the serious encroachments into the fundamental rights of members of the public (Derry 2004). Lord Derry Irvine has pointed out the importance of the Human Rights Act of 1998, through the words of Lord Woolf who said, “The recognition of the need to adhere to the rule of law by protecting human rights is essential to the proper functioning of democracy” (Derry, 2004:744). The European Convention was not directly relevant to statutory interpretation within the UK14 until the introduction of the Human Rights Act of 1998 into UK law, which is intended to give the provisions of the European Convention “teeth that can bite” (Ridall, 1999) in order to ensure compliance within the UK and provide scope for juridical interpretation through the application of universal standards. According to Feldman (2000:4), individual rights must be balanced against social goals and he views human rights as being linked to the conditions necessary for a democracy; human rights “help to establish the conditions of free speech, tolerance, equality and mutual respect for people’s dignity…” (Feldman, 2004:91). Lord Derry Irvine visualizes the incorporation of the Human Rights Act of 1998 into UK law as being a vital step that has transformed the country from a stage where initially, the citizens only had the “freedom to do what was not prohibited” but where the basis of exercise of power is specified, setting the stage for a “system of law ….of positive rights, freedoms and responsibilities” (Derry, 2004: 752-53). Individual freedom and the respect for the individual are thus an integral part of a democracy and the Human Rights Act has been incorporated with precisely the end of guaranteeing the rights of individual citizens, which includes members of the public and their rights to peaceful assembly and freedom of movement, speech and expression (Hoffman and Rowe, 2003). The case of Ghaidan v Godin Mendoza15 came up before the House of Lords, seeking the application of provisions of the Human Rights Act of 1998 to incorporate the rights of a surviving partner in a homosexual couple to statutory tenancy, which had earlier been denied16. The issue in the Ghaidan case was therefore that of introducing within the existing legislation, a provision to include the rights of homosexual couples, which constituted action that went “well beyond the boundary of interpretation”17 and the power of judicial declaration of incompatibility under Section 4 of the HRA 1998. The House of Lords dismissed the appeal in the Ghaidan case, on the grounds that it could only give effect to the legislation in conjunction with Convention Rights only to the degree that it was possible. As Justice Arden also points out while discussing the function of declaration of incompatibility of legislation by judicial authorities, Parliamentary sovereignty in the UK is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights (Arden, 2004). In exercising human rights law, judges are subject to persuasive authority, which is not binding in the sense they strictly adhere to the law, but allows them some judicial latitude, in order to ensure that universal human rights principles are to be given added weight in adjudication (McCrudden 2000). In the case of Sahin v Turkey18 (www.echr.coe.int) which involved Article 9 of the ECHR, where an individual filed for violation of her right to wear her religious head dress, the Court held that Article 9 would not necessarily guarantee in every instance, the right to behave in a manner conducive to one’s religious beliefs, if it was disproportionate to the rights of others sought to be upheld by the law of an institution of public body. In the case of Appelby v United Kingdom19, no violation of rights under Article 11 was found when applicants were prevented from holding a demonstration against a building on a local playfield. Conclusion: By incorporating the provisions of the European Convention of Human Rights into national law through the Human Rights Act of 1988, the law in England has essentially been modified from its existing form where an unwritten set of rules and judicial precedents have formed the basis of formation of law, to result in a system where individual rights are given top priority, so that every person has the right to privacy and dignity, even if such values may be contrary to general societal norms. However, as detailed above, there are limitations in the exercise of the HRA; in fact there are also limitations in the application of the provisions of the ECHR in upholding religious rights of individuals when it may arise in conflict with general rules established on the basis of standards of common morality and upholding the rights of others, as laid out in the Sahin case. Moreover, legislation will generally be upheld unless it is a serious violation of individual rights. As the case of Ghaidan cited above illustrates, even the power of declaration of judicial incompatibility of local law is limited and may not apply in every case. In the instant scenario, the COTF may be viewed as a religious organization and their right to assemble for religious purposes is guaranteed by the ECHR, however in view of the fact that naked dancing and consumption of alcohol may be perceived as subversive conduct by a majority of the members of the community, it is likely that such restrictions may not be viewed by the Courts as being in contravention of the Human Rights Act and the rights guaranteed to individuals. Where the public law as contained in the Acts of 1972 and 2003 are concerned, these are provisions that have been introduced for maintenance of public peace. It may also be noted that the group is not being prohibited from holding its convention altogether and if that had been the case, a valid cause of action could have arisen under violation of individual rights. However, the organization is only being asked to adhere to the rules that have been made for the benefit of the majority. Moreover, by maintaining such restrictions, the local authorities in this case may also be able to ensure that there is no potential for potentially subversive behavior to erupt later and therefore, it could be viewed as a reasonable preventive measure by the Courts, which in turn is a reasonable restriction on individual rights of a particular religious group in order that the rights of the majority to public standards of morality and public behavior are preserved. Therefore, it is unlikely that Estelle and David will have much scope to bring any action under the HRA to allow naked dancing and drinking, which may not be acceptable behavior from the standards of the community where such a convention is being organized. The Courts may deem it reasonable to expect the group to comply with local laws. Word count: 2249 Footnotes: 245 Total word count (excluding bibliography) : 2494 Bibliography Books/Journal Articles: * Annonymous, 1995.The Criminal Justice and Public Order Act 1994: What’s in it for you. New Statesman and Society London: February 17, 1995: 8(340) pp SS7 * Britain: Liberty adrift; anti terrorism laws” The Economist, September 13, 2003: 368(8341), pp 26 * Curbing terror or menacing freedom? Economist.com/Global Agenda London: March 11, 2005, pp 1 * Feldman, David, 2000. Civil Liberties and Human Rights in England and Wales. 2nd edn. Oxford: Oxford University Press, p. 4 * Feldman, David, 2004. The Impact of Human Rights on the UK legislative process Statute Law review 25(2):91 * Irvine, Derry, 2004. The Human Rights Act: principle and Practice. Parliamentary Affairs , 57(4) at 745 * Hoffman, David and Rowe,Q.C., John, 2003. “Human rights in the UK: An introduction to the Human Rights Act 1998 (2nd edn)Pearson Longman. * Justice Arden, 2004. The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence Statute Law Review, 25(3):166 * Ridall, G.J. 1999. Jurisprudence 2nd edn. London: Butterworths Cases: * Appleby and others v. United Kingdom, judgment of 6 May 2003, no. 44306/98, §§24-31, 46, ECHR 2003-V. * Fitzpatrick v Sterling Housing Association Ltd (2001) 1 AC 27 * Ghaidan v Godin Mendoza (2004) UKHL 30 * In re S (Minors) (Care order: Implementation of care plan) (2002) 2 AC 291, 313 at para 39 and 43 * Leyla Sahin v. Turkey, judgment of 29 June 2004, no. 44774/98, §§ 53-57 * Neville Estates Ltd v Madden (1961) 3 All ER 281 * R v Secretary of the State for the Home Department, ex parte Brind (1991) AC 696 * United Grand Lodge v Holburn B.C 1957 3 All ER 281 * Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 Legislation: * Anti Terrorism Crime and Security Act of 2001 * Anti Social behavior Orders of 1998. * Criminal Justice And Public Order Act of 1994 * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.hri.org/docs/ECHR50.html * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm * Security Service Act of 1996 [online] available at: http://www.fas.org/irp/world/uk/docs/1996035.htm * Universal declaration of Human Rights [online] available at: http://www.unhchr.ch/udhr/lang/eng.htm Read More