Constitutional and Administrative Law - Assignment Example

Question Introduction Constitutional and administrative law strives to set the parameters by which governments are accountable and individuals arerequired to co-exist in the community. This becomes partiuclarly compliated in the United Kingdom where there is no codified constitution but merely a collection of age old documents, statutory provisons, common law precedents and treaties, most notably with the European Community. Fortunately, the UK’s adaption of the European Convention Rights have narrowed the rule of law applicable to the abuse of public authority and the protection of the individual’s inalieanble rights to fundamental rights and liberties. In this vein, applicable national statutes and common law precedents will not be applied in a vacuum. Therefore, the list of restrictions placed on the EBA’s plan to stage a peaceful assembly will be examined by reference not only to the national laws but also with reference to Convention rights. Any conflicts will be resolved in favor of conventions rights. Discussion Section 1 of the Human Rights Act 1998 specifically indorses the “rights and fundamental freedoms” contained in the European Convention on Human Rights.1 Moreover, any antional laws that are inconsistent with convention rights are required to be intrepreted in such a way as to comply with the convention.2 A highcourt finding that a national provision is inconsistent with the convention rights is authorized to make a declarartion to that effect.3 As a result of this statutory provision Artilce 11 of the European Convention on Human Rights is directly applicable to Richard Zendo and his EBA members and the right to freedom of assembly and association. By virtue of Article 11 of the Convention rights and its direct applicability under Section 1 of the Human Rights Act Zendo and fellow members of the EBA are at liberty to challenge the restrictions placed on their planned demonstration by the local police constable. Article 11 The Council of Europe adapted the Convention rights for the protection of human rights and fundamental freedoms of the individual. One of those fundamental rights and freedoms is defined by Article 11 of the European Convention on Human Rights and reads as follows: “(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 for 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 of the administration of the State.” 4 It is assumed that the constable is acting on a belief that he has authority under Article 11 to place “lawful” restrictions on the planned assembly. The constable is obviusly acting on the presumption that he has the authority by virtue of the Public Order Act to implement the restrictions that he listed in his letter to Zendo. Section 12 of the Public Order Act 1986 sets out the grounds for which conditions can be placed on the “public processions.”5 According to the wording of Section 12 a constable is not the proper ranking officer to administer or set conditions on a public procession. By virtue of Section 12(1) those conditions are to be imposed by a senior ranking police officer.6 The right of a constable to interfere with any gathering in contained in Section 30 of the Anti-Social Behavior Act 2003.7 Section 30(4) confers authority of dispersement on a constable in circumstances: “…if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.”8 It is assumed that the constable in question has formed an apprehesnison of anti-social behavior by virtue of the information he obtained by way of blogs and website material submitted by Zendo. Be that as it may, the conditions can only be applied in the event the senior police officers has reasonable grounds to believe that: “(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or (b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or do an act they have a right not to do,…”9 On the facts of the case for discussion it seems unreasonble for the constable even if he were authorized by the Public Order Act 1986 to impose conditions on the kind of organized procession planned by Zendo. The procession is aimed at what amounts to nothing more than a peaceful demonstatrion in protest of oppressive treatment of a religious sect in China. The demonstration is aimed at a contingenf of Chinese officials visiting a business concern in the UK. The constable’s threat to have the protesters arrested under Section 128 of the Serious Organized Crime and Polcie Act 2005 might be connected to the level of protection and security planned for the Chinese contingent. Section 128 provides the government with the unfettered authority to designate any site within the UK a protected site for reasons connected to national security. It is assumed that since the Chinese officials are visiting the plant in question at the time of the planned demonstration the site is deemed “off-limits” by virtue of Section 128 of the Serious Organised Crime and Police Act 2005.10 The European Court of Justice has taken a particularly cautious approach to the contracting state’s right to impose restrictions or conditions on the right to freely assemble. In Gustafsson v Sweden Case No. 15573/89 [1996] ECHR 20 the ECJ noted that there are oftern time competint interest in the exercise of the right of individual to peacefully assemble. Thereore: “In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and, in particular, in assessing the appropriateness of State intervention to restrict action…and the wide degree of divergence between the domestic systems in the particular area under consideration, the Contracting States should enjoy a wide margin of appreciation in their choice of the means to be employed.”11 In the United Kingdom whether or not it is reasonable to impose conditions on processions is determined with reference to priniciples safegaurding public peace and order under the general provisions of the Public Order Act 1986. Mr. Justice Collins ruled in Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382 unless there is a risk of violence in any public gathering it would not constitute a breach of the peace. That violence he went on to state did not have to originate from the defendants. It only needs to be shown that there is a reasonable apprehension that his conduct could incite violence in others. Justice Collins went on to explain: "The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established."12 In R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] QBD 458 Lord Denning took a more restrictive yet simpler approach to the grounds that might give rise to a reasoanble apprehension that a gathering or protest could give rise to a breach of the peace and would be considered unlawful. Lord Denning held that: “There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace."13 In a recent case the Court of Appeal considered the implications of Section 14 of the Public Order Act 1986. Althought this case, Singh, R v Chief Constable of West Midlands Police [2006] EWCA Civ 1118 applies to the Anti-Social Behavior Act 2003 it is relevant to all public gatherings involving two or more persons and delineates the genral powers of the police in relation to these kinds of gatherings. Therefore by implication the Public Order Act 1986 is relevant to an interpretation of freedom of assembly within the meaning of Article 11 of the European Convention on Human Rights. In Singh, R v Chief Constable of West Midlands Police [2006] EWCA Civ 1118 the defendants, members fo the Sikh community were engaged in a protest against a play being staged at a theatre,. The protest got to a point where police were called out to the theatre and made an order for dispersal under Section 30(3) of the 2003 Act. The basis of the dispersal order was the escalation of the crowd and the fact that the protest was held in an area where there was heavy drinking as a result of the upcoming Christmas holidays. The protesters were ordered to leave the location and could not return for at least twenty-four hours. The claimants made an application for judicial review.14 The claimants argued that the Section 30 dispersal order under the 2003 Act did ot apply to protests and as a result argued that their fundamental rights to assemble had been contravened. The court however did not agree. It held that Section 30 was broad enough to apply to assemblies and protests under the Public Order Act 1986. Moreover the law recognized generally that he police had an inherrent duty to keep the peace and to ensure that the exercise of fundamental rights and freedoms were not disportionate to those of others.15 Based on this ruling it would appear that the constable could make an order for disperal in the event Zendo and his group insist upon carrying on with the protest in a manner contrary to the list of conditions imposed upon them It appears that all the constable only needs to be satisfied that the gathering is disrupting the peace of the Chinese contngent and the persons with whom they are visiting. In R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 WLR 46 the House of Lords held that the police had not acted within their powers when they stopped a coach carrying protesters who were enroute to an airforce base pursuant to anti-Iraq war protests. Previously the Court of Appeal had ruled that the police had only acted unlawfully in ordering that the coach return to London. However forcing the protesters to disperse was a violation of their fundamental rights to freedom of expression as contained under Article 10 of the Convention rights as well as freedom of association as contained under Article 11 of the Convention rights.16 The House of Lords also held that the police had violated Articles 10 and 11 of the Convention. The House of Lords also went on to expound upon the police’s duty to prevent a breach of the paeace. The court was of the opinion that it was not necessary for a breach of the peace to be imminent in order to impose a preventative duty on the police, although the imminence test would be considered by reference to the facts and circumstances of each particular case. That said the House of Lords said that the conduct of the police in forcing the occupants of the coach to turn around and go to London amounted to an arrest. Since there were no reasoable grounds to arrest the defendants there were no grounds for taken action that was tantamount to an arrest. The court stated however that if: “…the public interest required that the power of the police to control demonstrations of the present kind should be extended, any such extension should be effected by legislative enactment and not judicial decision”.17 According to this ruling the protesters were at liberty to protest near an airforce base. It therefore follows that Zendo and his group are at liberty to pursue their progragme as planned. While thise might cause dispersal action on the part of the police it seems that the assembly has an inalieanble right to assemble as they have planned and provided the serve the officers with the requisite notice under Section 11 of the Public Order Act 1986.18 According to the standard set by R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 WLR 46 the police cannot act arbitrarily. The information published by Zendo on the internet does not give rise to a reasonable apprehension that the procession will lead to a breach of the peace. Moreover, it is unlikely that assembling 400 metres away from the plant will consitute a criminal trespasss under Section 128 of the Serious Organized Crime and Police Act 2005. The difficulty for the police with Seciton 128 of the 2005 Act is that by implication Section 132 requires publication of areas designated “off limits”. Setion 32 requires that persons preparig to protest or assemble in an area designated as off limits must obtain permission from the police for such a gathering. 19 It would appear that in order to apply for permission to assemble in a designated area the applicant would have to have advance knowledge that the place is a designated area. Zendo’s protesters plan to assemble 100 metres away from a manufacturing plant. It is not likely that this location has been designated an off limits location national security reasons. Therefore any arrests made by the constable pursuant to Section 128 of the Serious crimes Act 2005 will not likely amoung to a charge or subsequent conviction in respect of criminal trespass. If anything the arrests if made will be a violation of Articles 10 and 11 of the European Convention on Human Rights. Moreover, by virtue of Section 6 of the Human Rights Act 1998 it is “unlawful for public authorities to act in a manner” inconsistent with a convention right.20 Question 2 Dicey identified and formulated what he referred to as the ‘twin pillars’ of the UK Constitution. He maintained that Parliament has the right to “make or unmake any law” moreover “ no person or body” has “ a right to override or set aside the legislation of Parliament.”21 As a result Parliament has absolute power. With the concept of absolute power there is no power to divide. Therefore on a numerical basis the doctrine of seperation of powers does not apply to the constitution of the UK at all and the appropriate numerical rating would be a Zero. Question 3 A.V. Dicey theorizes that ‘…Parliament has total power. It is sovereign.’22 Dicey’s rule of law is founded on three guiding principles. First, the law stands supreme over arbitrary powers. Secondly, is equally accountable to the ordinary laws of the land as administered in the courts. Thirdly, constitutional laws provide the consequences of the administering of the law .23 Mumerical rating = 9 . Bibliography Anti-Social Behavior Act 2003 Dicey, A.V.(1982) Introduction to the Study of the Law of the Constitution. London: MacMillan Europaean Convention on Human Rights Gustafsson v Sweden Case No. 15573/89 [1996] ECHR 20 Human Rights Act 1998 Mothenson v Peters, 8 F(J.C.) 93 Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382 Public Order Act 1986 R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] QBD 458 R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 WLR 46 Serious Organized Crime and Police Act 2005 Singh, R v Chief Constable of West Midlands Police [2006] EWCA Civ 1118 Thoburn v Sunderland City Council [2002] EWHC 195 Turpin, C, (2002) British Government and the Constitution: Text, Cases & Materials, Butterworths Read More