The ECHR and the HRA 1998 - Essay Example

?The ECHR and the HRA 1998: Problems of Implementation Whether there is sufficient ground for Rik to commence proceedings against the Metropolitan Police (MP) for disallowing and preventing the Hands Off Our Libraries (HOOL) campaign group to end its rally in Parliament Square calls for further understanding on the right to freedom of assembly, as enshrined in Article 11 of the ECHR and HRA 1998. The right to freedom of assembly is perceived as one of the cornerstones of democratic society, as it directly affects other human rights such as the right to liberty and to freedom of expression, and the prohibition of discrimination. Meaning, an infringement of the right to freedom of assembly may as a consequence curtail other qualified rights. For better understanding the following explanations relevant to the case under study are noteworthy: 1. Article 11defines assembly as “a company of persons gathered for some common purpose, for example, a meeting or public demonstration [whereas] freedom of assembly… include[s] organisation of, and participation in marches… processions, ‘static assemblies… sit-ins’ and both public and private events, whether formal… informal (Interights, 2007, p. 7). Based on this definition, Rik’s group and activity qualifies. 2. The right to freedom of peaceful assembly is not an absolute right, but is a qualified right. Meaning, such rights can be interfered with by the Government under specified circumstances. The manner by which Article 11 is constructed clearly manifests this, wherein section 1 defines the rights being upheld, while section 2 defines Government legitimate interferences that may curtail this right. (Ashcroft et al., 1999, p. 22) 3. The general principles as to Government legitimate interferences are set by the European Court of Human Rights following the two cases: Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) and Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007), whereby the concerned State parties had been found violating Article 11 (Marauhn, 2007, p. 120). The Court laid the burden of proof on the State, ruling that Government interference against Article 11 is legitimate provided: a. It has legal basis in domestic law. “In determining the necessity of a restriction, the European Court and Commission have always accorded a certain margin of appreciation to the national authorities” (Rai, Allmond & Negotiate Now [1995]) (Hamilton, 2007, p. 19-20). In Rik’s case the following UK laws apply – for the power of the MP are the Public Order Act (POA) 1986 and the Serious Organised Crime and Police Act (SOCPA) 2005 (Norton 2010); while for the restricted use of the Parliament Square are the Greater London Authority Act 1999, and the Trafalgar Square and Parliament Square Garden (Amendment No. 1) Byelaws 2002 (Greater London Authority, 2002). b. It is grounded on permissible aims, which in Rik’s case as given by the MP is security. Although such given reason was unconvincing especially so that in the past The Parliament Square has been the common centre for demonstrations and no recent security issue had been heard for the use of the Square. Furthermore, the HOOL as an organisation does not connote any violent intention and does not have any violent history in the past. c. It is indispensable in a democratic society, which in Rik’s case to ensure security is necessary for a democratic society to enjoy its freedom and rights. However, the right being curtailed is in fact one of the cornerstone of democratic society. Meaning, the reason for its infringement must be greater. In Rik’s case, the reason is unconvincing. d. It should be proportionate to the aim being pursued, which in the case of Rik’s, the police ‘kettling’ – which although favoured by the High Court in Austin v Commissioner of Police of the Metropolis (UKHL, 2009) – of the protesters for four hours did result to the curtailment of the protesters freedom of movement and even put their health, especially the young children, at risk, as they were prohibited access of toilet facility. Given the above explanations and given the circumstances of the HOOL’s protest march, despite the two recent cases: The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) (Wagner 2010) and The Mayor of London v. Brian Haw & others [2011] EWHC 585 (QB) (Henderson, 2011), having favoured by the High Court regarding the legitimate interference of the Mayor of London against the use of the Parliament Square for public assembly by protesters, the different circumstances on Rik’s case give him sufficient ground to commence proceedings against the Metropolitan Police (MP) on the following grounds: 1. “Route restrictions have (sic) been held to be an infringement of the right to peaceful assembly, for the right itself has not been interpreted restrictively (Rassemblement Jurassien & Unite Jurassien v Switzerland (1979) at p.119; Christians Against Racism and Facism v UK (CARAF) (1980) at p.148; G v The Federal Republic of Germany (1989) at p.263; Anderson et al v UK (1997)). (Hamilton, Jarman & Bryan 2007, p. 21). Furthermore, the MP did not satisfy the reason for the rerouting of the march, added by the fact that ‘kettling’ the protesters for four hours may further threaten security of the area, as this may intensify tensions that may create greater risk to public safety. (In the cases of Aberdeen Bon-Accord Loyal Orange Lodge 701 v Aberdeen City Council (September 2001) and Wishart Arch Defenders Loyal Orange Lodge 404 v Angus Council (April 2001), the court found the restriction insufficient, saying “that the right to public assembly may be restricted in certain circumstances but that it was for the public authority to show that it was necessary to curtail that basic right before any such restriction would be upheld” (Review of Marches and Parades, 2005). 2. The ‘kettling’ of protesters which include families with children infringed Article 3 of the Conventions on the Rights of the Child (CRC). Having been denied mobility and access to toilet facility the MP disregarded the best interest of the child which the CHR has categorically stated: “shall be a primary consideration” (Human Rights Education Associates 2007). Article 13 of the ECHR provides a right to an effective remedy but only if there is an arguable claim for the violation of a Convention right (Interights, 2007, p. 3), which in Rik’s case is Article 11 and as a consequence Article 6: The right to liberty and security. Aside from this, there are other pertinent international remedies available to Rik, such as Article 8 of the Universal Declaration of Human Rights from which ECHR had been drafted, and Article 2(3) of the International Covenant on Civil and Political Rights. These treaties guaranteed the right to a remedy, because without remedy a right cannot be a right. (Tumay, n.d.) The declaration of human rights indicates that these are not being observed. The right to a remedy is a tool to guarantee the observance of human rights. Reference List Ashcroft, P., Barrie, F., Bazell, C., Damazer, A., Powell, R., and Tranter, G. (1999). Human rights and the courts: Bringing justice home. Waterside Press: Winchester, NN. Greater London Authority. (2002). Trafalgar Square and Parliament Square Garden (Amendment No. 1) Byelaws 2002/ Greater London Authority Act 1999, Section 385 (1). Retrieved 18 May 2011 http://www.london.gov.uk/trafalgarsquare/docs/squares_byelaws.pdf Hamilton, M., Jarman, N. and Bryan, D. (2001). Parades, protests and policing: A human rights framework. Northern Ireland Human Rights Commission: Belfast. Henderson, A. (2011 March 28). Blow to Parliament Square protest camp. UK Human Rights Blog. Retrieved 18 May 2011 http://ukhumanrightsblog.com/2011/03/28/blow-to-parliament-square-protest-camp/ Human Rights Education Associates. (2007). Conventions on the Rights of the Child. Retrieved 18 May 2011 http://www.hrea.org/index.php?base_id=104&language_id=1&erc_doc_id=473&category_id=29&category_type=3&group=Human%20rights%20treaties%20and%20other%20instruments Interights. (2007). Interights Manual for Lawyers: Freedom of assembly and association under the European Convention on Human Rights (Article 11). Lancaster House: London. Marauhn, T. (2007). Freedom of expression, freedom of assembly and association. In Dirk Ehlers (Ed.), European fundamental rights and freedoms, pp. 97-129. Walter de Gruyter: Germany. Norton, E. (2010 June 2). What powers do the state have to prevent protests? The Guardian. Retrieved 18 May 2011 http://www.guardian.co.uk/commentisfree/libertycentral/2010/jun/02/state-powers-pervent-protest-brian-haw/print Review of Marches and Parades in Scotland. (2005 January). Retrieved 18 May 2011 http://www.scotland.gov.uk/Publications/2005/01/20583/50702 Tumay, M. (n.d.) LLM in International Human Rights Law: The Subsidiary Protection of European Convention on Human Rights with Special Reference to Article 13. Retrieved 18 May 2011http://www.hukukcu.com/bilimsel/kitaplar/LLM_humanrights.htm UKHL 5. (2009). Opinions of the Lords of Appeal for judgment in the cause Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent). Retrieved 18 May 2011 http://www.bailii.org/uk/cases/UKHL/2009/5.pdf Wagner, A. (2010 June 30). Parliament Square protesters evicted: analysis of judgment. UK Human Rights Blog. Retrieved 18 May 2011 http://ukhumanrightsblog.com/2010/06/30/parliament-square-protesters-evicted-analysis-of-judgment/ Read More