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Human Rights - Essay Example

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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…
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Download file to see previous pages 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 ...Download file to see next pagesRead More
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