Public Order Legislation and Fundamental Rights - Essay Example

Public Order Legislation and Fundamental Rights Introduction: The Constitutional framework in Britain is such that no formal Bill of Rights exists, to protect the fundamental rights of individual citizens, rather the freedom that is available is “no more than what was left over after all the law’s prohibitions have been obeyed.”1 The principle of Parliamentary Sovereignty, as articulated by Oxford Professor A.V. Dicey holds that “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority.2 However the Human Rights Act of 19883 has incorporated the goals of the European Convention of Human Rights4 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 legislation5 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.”5 The Rights of Public protests: Public protests are generally encompassed within the framework of the right to free expression and free association which is an essential part of a democracy. However the European Convention of Human Rights also includes among its umbrella of rights guaranteed to people, the right to such freedom of speech and association which may also include the freedom to protest6. But this right to public assembly is not one of the fundamental rights, such as that of the right to life or the right against torture7, therefore these rights may be regulated to some extent by the Government through the police in the interest of maintaining law and order. But how far can policing be extended? While these rights may certainly be regulated, they cannot be obstructed and developments that have been occurring within the UK for the past two decades appear to point in that direction. The Criminal Justice and Public Order Act of 1994: Public protest has been a part of UK history, but has not been construed to be criminal without due cause. 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.8 Specific provisions that are of interest in the case of public order are from section 619 up to sections 77-80 that even deal with the traveling community, which includes unlawful camping and gatherings and forfeiture of equipment.10 Trespassing on land and refusing to leave when asked to do so by the police also constitutes an offence11. 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”12 by obtaining an order from a local authority to ban such an assembly if they have a reasonable suspicion that there could be disturbances, including land where the owner’s permission has not been sought where people can be evicted with reasonable use of force13. Since the Security Services Act of 1996, the meaning of public assembly and public protest 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.”14 It is this definition of common purpose that renders most public assembly potentially criminal. It enhances police control by indicating that even minor offenses such as trespassing or holding marches without gaining the consent of the police could be deemed to be a criminal activity15. Ultimately, any group of public persons who demonstrate to express their protest against a particular policy or for a particular reason which is not necessarily criminal in nature, are doing it for some “common purpose” and thus can be liable. Merely obstructing the police in the conduct of their duty or using “threatening, abusive or insulting words or behavior” can constitute an offence16. The use of disorderly behavior that could cause another person to feel distress or anxiety would itself be construed as an offence.17 Within the scope of individuals gathering for a “common purpose” are included a wide section of members of the public, who could all be deemed guilty as public offenders if they resort to public protest 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. In reference to picketing, this also poses a problem, since peaceful picketing has traditionally been allowed in law18. Enhanced provisions for search and seizure, detention and arrest19 have all further encroached into the fundamental liberties of individual citizens. Moreover, this Act also allows the police to impound the vehicles of those deemed to be public offenders and Wasik and Taylor state that: “it should not be forgotten that in many cases the vehicles involved will constitute the homes of the persons concerned. Their destruction will be the destruction of the place where they live.”20 Enhanced police powers also include the permitting public surveillance by the police through the use of video monitoring or photography, for the purposes of gaining evidence, all of which are serious obstructions to the peaceful right to gather and protest or march in public. Moreover, the Police have been clamping down on the right of citizens to protest peacefully21 and this has the effect of turning peaceful protesters, homeless people, party crowds and gypsies into criminals and the exercise of the right to assembly into a criminal offence.22 This raises the issue of validity of legislation that interferes with fundamental rights to protest peacefully and to gather in public places, with the sole criterion for police interference being noise levels23 ( as in gatherings for public concerts) or the strength of crowds and their purported potential to cause trouble24. Further legislation and the Impact upon Human Rights: 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.”25 However, it may be argued that the new Draconian measures achieve exactly the opposite end. The HRA included the objective of upholding fundamental rights of individuals mandated in the Convention by including a provision that Parliament legislation is to be interpreted and read in such a manner as to give effect to the goals of the European Convention26, while the judiciary has also been given the power under the Act to declare Parliament legislation incompatible with Convention rights27. This is especially significant because within the UK, the European Convention was not directly relevant to statutory interpretation28 until the introduction of the Human Rights Act of 1998 into UK law and is intended to give the provisions of the European Convention “teeth that can bite”29 in order to ensure compliance within the UK and provide scope for juridical interpretation through the application of universal standards. But the 9/11 attacks resulted in the Anti Terrorism Crime and Security Act of 2001 that has built upon the draconian measures set up in the Public order Act of 1994 and is now being used by police officers in routinely bypassing the requirement of reasonable suspicion of a criminal offence in order to clamp down on demonstrators.30 The provisions of the Terrorism Act overall allow the police a greater level of leeway in clamping down on the fundamental rights to liberty that are assured under Article 5 of the European Convention of Human Rights, by way of permitting arrests without warrants, trials without juries and indefinite detention31. 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 public32. Under PACE 1984 and the Terrorism Act, police officers can now apply to circuit judges to sub poena documents they believe vital in a terrorist investigation and can even undertake surveillance operations on suspected members of the public without any authorization on the basis that national security is at risk or for “the purpose of preventing or detecting crime.”33 The justification that has been offered is the fact that they are a “necessary and proportionate response to the threat that we continue to face”, a position that the House of Lords found to be unacceptable – indefinite detention of individuals on grounds of suspicion of terrorist activity was held to be incompatible with human rights.34 According to Lord Nicholls: “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.”35 When examining the steadily expanding powers that are being handed over to the police through legislation, it may be noted that the basic issue is the abrogation of the safeguards of the criminal process, as Lord Nicholls has so clearly outlined above36. This has also steadily extended into the civil process and the curtailment of freedoms has affected not only the so-called terrorists but also members of the general public. Nowhere is this more evident than in the Anti Social Behavior Order that was created in 1998 and in the short space of six months in 2004, produced a thousand arrests.37 This Order allows police officers to tackle a wide range of anti social behavior that would be too mild to fall within the purview of a criminal act, so that even low level offences such as entering a barred neighborhood, ringing doorbells, spitting or blasting loud music for purposes of creating any kind of public disturbance could result in an unruly teenager being arrested - there are no strict rules as those followed in criminal courts, hearsay evidence is permissible and convictions can even extend up to five years.38 The justification offered for such draconian measures against young people include the fact that the criminal justice system does not work, too many people are able to slip out of the net of the system because of the rigid requirements for evidence, delays in processing trials in courts, the difficulty of procuring witnesses to substantiate charges because of the element of fear, so that the end result favors the criminals rather than the law enforcement authorities39. Lawmakers have not hesitated to increase the powers of the police to such draconian measures that compromise on the safeguards imposed by common law upon the rights of the public; the argument they offer is that of self regulation by police officers through the limitations of common decency.38 However, Lord Macintosh of Haringy had spoken out on the provisions concerning public order in the Criminal Justice Act of 1994 and has stated unequivocally that “these are repulsive extensions of police power in our society and at some stage, they will have to be removed.”39 But the Anti Social Behavior Orders had only expanded police powers, further encroaching into fundamental rights of citizens. The provisions of these restrictive control orders have been used against prostitutes, the mentally ill, protesters and beggars, posing a significant threat to civil liberties through the lack of discretion in the use of such powers.40 for This has been followed by a new Directive from the Government in 2005 which is known as the Serious Organized Crime Agency.41 The SOCA legislative action arose in response to four bombs exploding in London in July 2005 and the order sets out the police priority as being to “combat serious and organized crime, within and across force boundaries”42 but this has created a further range of new powers for the police, over and above the expanded powers that have already been granted through the Terrorism bill and the earlier 1994 Criminal Justice Bill. The enhanced provisions of SOCA also allow the police to detain suspects from among members of the public for up to 90 days and such draconian provisions of the new SOGA have been hotly debated in parliament, with Michael Howard and other opponents criticizing the plans on the basis that they are “an unprecedented affront to free-born Englishmen.”43 This corroborates the views of Privacy International, in putting forward objections to new legislation, that has expressed the fears of many Englishmen and women that “Britain is rapidly losing many key democratic safeguards.”44 In view of the ever expanding scope of police powers through new legislation, Lord Macintosh’s view especially would hold good, that these are unacceptable extensions of police power45, especially since any abuse of such wide ranging powers by the police are difficult to control – both judges and politicians are reluctant to “second guess the police” particularly in matters concerning intelligence, which has therefore practically provided a free hand to the police46. Sovereignty rests in the hands of the people, according to Locke and he believes that the “law of nature” wills the “peace and preservation” of all mankind, so that one man is obliged to do no harm to another.47 According to Feldman, individual rights must be balanced against social goals48 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…”49 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.” 50 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. Therefore, the stringent police action issuing forth as a result of draconian legislation is equivalent to a violation of those rights of free speech and respect for other people’s dignity. Common law, upon which the law of England is based, requires that action by the police must be based upon reasonable suspicion, but under the new terrorist measures,51 the police enjoy a much wider range of powers. The anti-terrorism legislation allows jury-less trials, indefinite detention – draconian measures that use terrorism as the basis for their existence but are also being used against members of the pubic, raising questions about the validity of such acts.52 Conclusion: Where the issue of fundamental rights are concerned, Lord Browne Wilkinson has noted that British judges have protected them,53 hence government initiatives such as the draconian legislation that has been passed must be subjected to “the most anxious scrutiny”54 In the case of R v Secretary of State, Lord Bridge clarified that in cases involving fundamental rights, the Courts are “perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.”55 The question that arises in this context is therefore, whether or not the public interest in fact, justifies such draconian measures. While terrorism is a potent threat, the existing criminal justice system under the common law has been a relatively stable source of justice, ensuring that the rights of individuals are protected through every available means in the checks and balances criminal system, which obligates the police to prove their case against an individual before taking action against him. However by way of the draconian new legislation, minor offences are also actionable by police officials by imprisoning the offenders through the Anti Social behavior Order, there are enhanced provisions for search and seizure and detention of individuals, thereby building a dangerous level of police control over members of the public. As stated previously, there is concern that the rights of individual citizens and the freedom that every British person has taken for granted for so many years under the democratic system are in serious danger of being eroded by increasing encroachment of police power. According to Lord Derry Irvine, the role of the executive is to “continue to build Convention standards into decision making at all levels, so that decisions are proportionate, rational and respectful of fundamental rights.”56 In spite of the system of Parliamentary Sovereignty that reigns Supreme in Britain, and although public protests have existed since a long time in history, there have never been so many restraints placed upon the activities of members of the public. Government is far exceeding the scope of its decision making powers to hand over to the police a dictatorial role in the lives of ordinary citizens through the draconian legislative measures it has been approving and passing. Therefore, legislation that is passed by parliament as a part of its law making function needs to incorporate the European Convention standards that have set out the fundamental rights of individuals, in order to ensure that the goals that have been welcome into UK law through the HRA are not sacrificed to police excesses and the values of democracy are not lost. Bibliography Books: * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471 Feldman, David, 2000. Civil Liberties and Human Rights in England and Wales. 2nd edn. Oxford: Oxford University Press * Locke, John. Two treatises of Government, 1690. Internet Modern History Sourcebook. [online] available at: http://www.fordham.edu/halsall/mod/1690locke-sel.html * Ridall, G.J. 1999. Jurisprudence 2nd edn. London: Butterworths * Wasik, Martin and Taylor, Richard, 1994. Blackstone’s Guide to the Criminal Justice and Public Order Act 1994 London: Blackstone Press 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 * Annonymous, 2005. UK Police Powers outlined American Libraries, December 2005: 36(11) pp 25-26 * Feldman, David, 2004. The Impact of Human Rights on the UK legislative process Statute Law review 25(2):91 * Hutchings, Vicky, 1994. Fight for the right to party New Statesman and Society, May 6, 1994: 7(301), p 12 * Lord Browne Wilkinson, 1992. The infiltration of a Bill of Rights. Public Law 397, at 409. * Irvine, Derry, 2004. The Human Rights Act: principle and Practice. Parliamentary Affairs , 57(4) at pp 744 * Britain: Liberty adrift; anti terrorism laws” The Economist, September 13, 2003: 368(8341), pp 26 * Britain: A blow for democracy: law Lords The Economist , December 18, 2004: 373(8406), pg 46 * * Britain: Repeat Offending, Labor and the Law The Economist London: November 12, 2005: 377(8452) pp 34 * Curbing terror or menacing freedom? Economist.com/Global Agenda London: March 11, 2005, pp 1 * Leaders: Taking Britain’s liberties – taking liberties, anti social behavior in Britain the Economist, Feb 5, 2005: 374(8412), pp 9 * Police crack down on protest New Statesman and Society, November 4, 1994: 7 (327), p 7 Legislation: * Anti Terrorism Crime and Security Act of 2001 * Anti Social behavior Orders of 1998 * Criminal Justice and Public Order Act of 1994 * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Public Order Act of 1986 * Security Service Act of 1996 Cases: * R v Secretary of the State for the Home Department, ex parte Brind (1991) AC 696 * R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 at 531 Read More