Says Weinstein (2000):
This ability to transcend national law, and to compel revision of such law to comport with rights guaranteed by the European Convention in a broad range of areas, most often within the exclusive purview of national and local courts, is of historic note. Generally, nation states have been the final arbiters of most issues affecting their citizenry and within their borders. By treaty, the signatory nations of Europe have granted the ECHR binding authority to decide cases affecting their citizenry and other persons subject to their authority. In instances where state law is found inconsistent with an ECHR judgment, the nation at issue is obliged to amend its national law to comport with the ECHR decision. These cases illustrate the concept of what is increasingly being referred to as an evolving European supranational identity. The ECHR grants jurisdiction to any individual, non-governmental organization, or group claiming be a victim of a violation of the European Convention by a ECHR signatory nation, and to bring cases before it, as does, in applicable cases, the European Court of Justice (the "ECJ"), the court of the European Union, based in Luxembourg.
At the onset, it must be established that the Blueberry District Council is a public body, having derived its powers and mandate from the Local Government Act 1972 and the Licensing Act 2003. Having established that, there are provisions in the Human Rights Act 1998 which may be used by Estelle and Gary to challenge Conditions four and five of the Council letter. This is notwithstanding the Public Order Act of 1986 which in Section 5 deals with "Harassment, Alarms or Distress". A person would be liable under Section 5 only if he "uses threatening, abusive or insulting words or behaviour, or disorderly behaviour," or "displays any writing, sign or other visible representation which is threatening, abusive or insulting." There is nothing in the behaviour of Estelle and Gary's organization that would warrant censure under the Public Order Act. The activity is a simple ceremony in accordance with their beliefs.
The first principle that they may invoke is the principle regarding Freedom of Thought, Conscience and Religion which is enshrined in Article 9. There is no dearth of cases that they may cite in order to support their position. For example, in the case of Arrowsmith v. United Kingdom [(1978) 19 DR 5] , it was stated this right refers to acts that are an expression of a religion or belief. This right was raised before the ECHR for a variety of reasons, such as employment (X v. United Kingdom [(1981) 22 DR 27] and prisoners' rights (X v. United Kingdom [(1976) 5 DR 100]. While certainly, the courts have taken quite a restrictive approach in applying the provision and granting relief under it1, it has been restrictive when the acts sought to be justified are acts that are patently illegal and morally wrong, such as assisted suicide2 or the distribution of cannabis. 3 These acts cannot be compared to the simple act of dancing, even if such dancing is done naked, for it will be done in the middle of the night and with only members of