Public Law Course Work - Assignment Example

PUBLIC LAW WORK Question How, if at all, can Estelle and Gary use the Human Rights Act 1998 to challenge conditions 4 and 5 of the Council letter? Discuss what legal arguments can they make under the Human Rights Act 1998 and what remedy or remedies the members could seek. The Human Rights Act 1998 received royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of said Act was to harmonize the domestic law of the United Kingdom with the European Convention on Human Rights. To reaffirm the commitment of the UK to human rights and civil liberties, it is now possible under the said Act to file a claim for violation of the ECHR without going to the European Court of Human Rights in Strasbourg. 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. Equally important, it prohibits any public body from behaving in a manner that is incompatible with any of the rights guaranteed under the ECHR. (Hoffman & Rowe, 2003). 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 the organization present. The dangers of cannabis and euthanasia simply cannot compare to the conjectured danger in the case at hand, and thus, the latter should fall under the ambit of freedom of religion. Freedom of Expression which may be found in Article 10, can likewise be cited. Gary and Estelle may argue that as members of the “Children of the Forrest”, an organization which worships Woodlands and Forrests, their public assembly is merely an exercise of their right to free speech and expression. There can be no doubt that freedom of expression is of paramount importance.4 Consequently, the prohibition on the drinking of alcohol and dancing is a violation of these precious rights – as partaking of wine and dancing outdoors are manifestations of their core beliefs and principles. It must be noted that one area where judicial discretion is especially large is the area of free speech. While the right to free speech is a crystallized principle that has been place almost since the beginning of time, enjoying a cherished position in the bill of rights of virtually all civilized legal systems, the interpretation of what constitutes free and protected speech still has yet to be perfectly refined. This provision has been invoked many times over in the course of history, whether within the European Union or outside, successfully and unsuccessfully; and Courts have had many opportunities to set standards and devise guidelines to determine if the speech in question should be protected or not. It is important to note that Article 10 protects not merely the substance of the idea but also the form that they are conveyed. This was the ruling in the case of Oberschlick v. Austria [(1997) 25 EHRR 357] and it could be applied here. The form of the expression, which is the naked dance, should also be considered protected speech. This is bolstered by the fact that in the case of Stevens v. United Kingdom [(1986) 46 DR 245)], the concept of expression covers even “actions”. It becomes more difficult when the right to free speech competes with another principle, in this case, the principle of public order. In “easy” cases, all that should be done is look through jurisprudence until one finds the applicable case with similar facts. In “hard” cases with novel facts, the role of the judge becomes infinitely more difficult. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the material was trying to say. Social and political values inevitably come to the fore. To quote legal writer Thomas Streeter, “It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; he will always in one way or another be forced to make a choice about whether or not he thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.” (Streeter, 1995) What distinguishes the area on free speech from other “legally-indeterminate” areas is that it is inextricably intertwined with and largely dependent on language which, as many eminent linguists have said, is arbitrary in the sense that meanings cannot be derived from anything logically-inherent in the words. These meanings are merely “assigned meanings” born of the collective experiences of people in a community and this system of interpretation is never static. Perhaps owing precisely to the fact that judicial discretion is especially large where free speech is concerned , the Human Rights Act 1998 sought to provide standards to make it easier to determine if indeed the curtailment of the right to free speech is warranted. Under Article 10, restrictions may only be used for the prevention of crime, the protection of morals, the protection of other people’s rights or reputations, the protection of confidential information, and other similar compelling need. Moreover, the regulating authority must be able to demonstrate that the interference was “necessary and proportionate.” In this particular case, it is obvious that the regulation or restriction was unnecessary and disproportionate – based not on a clear and present danger, but rather on imagined fears. There is nothing to suggest that the dancing to be performed by the organization will constitute danger to the members of the community. Further, they do not plan to get inebriated. The sharing of a glass of red wine is in the spirit of communion – a symbol of the intimate bonds of the community. Hence, it may be argued that their rights have been violated and this is in direct contradiction to what is stated in the European Covenant on Human Rights. As stated in the case of BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND {45036/98 [2005] ECHR 440 (30 June 2005)}: Respect for fundamental rights s thus a condition of the lawfulness of Community acts – in this case, the Regulation. Fundamental rights must also, of course, be respected by Member States when they implement Community measures. All Member States are in any event parties to the [Convention], even though it does not have the status of domestic law in all of them. Although the Community itself is not a party to the Convention, and cannot become a party without amendment both of the Convention and of the Treaty, and although the Convention may not be formally binding upon the Community, nevertheless for practical purposes the Convention can be regarded as part of Community law and can be invoked as such both in the [ECJ] and in national courts where Community law is in issue. That is so particularly where, as in this case, it is the implementation of Community law by Member States which is in issue. Community law cannot release Member States from their obligations under the Convention.” There is also the freedom of assembly and association argument (Article 11) that may be raised. Aside from imposing a negative obligation on law enforcement agents not trample on protected rights, they must secure the effective enjoyment of these rights. [Wilson and Palmer v. United Kingdom (2002) 35 EHRR 20). In the case of Plattform ‘Arzte fur das Leben v. Austria [{1988) 13 EHRR 204] the ECHR held that “Genuine effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the state not to interfere… Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.” Therefore, the Council could be said to be violating the law if it does not protect the right of the organization to assemble and perform their legitimate activities. Estelle and Gary may likewise question the legal basis of the regulation and argue that such is procedurally-infirm. The manner and form argument essentially means that the present Parliament must not alter the process of passing legislation through legislation, if such would impact on the rights and powers of future Parliaments. It may be raised in relation to the failure of the minister to make a declaration of compatibility with the European Convention on Human Rights in the sense that it radically alters the process of new legislation. (Mowbray, 2002.) It is important that there be a consistency and a compatibility between new domestic laws and the stipulations in the Convention. Absent this, it changes the landscape altogether, and whittles down the importance of human rights in crafting national policy. Furthermore, the legality of the act may be challenged by saying that it is vague and overbroad, or the overbreadth doctrine. Essentially, since one of the rationale of the regulation in question is that the police requested it, it will open the floodgates to abuse. An alarming precedent will be set wherein any police officer or person in authority may make a “request” and such request will be complied with without regard to its validity, even if it violates core freedoms like free speech. Remedies By virtue of the Human Right Act 1998, Gary and Estelle can go directly to domestic courts for redress instead of in the European Court of Human Rights, despite the fact that the cause of action is a violation of the European Convention of Human Rights. However, they may also specifically choose to go to the ECHR. Their chances are bolstered even further by the Constitution Reform Act of 2005. The Constitutional Reform Act of 2005 rides on the crescent wave of voices and policies in the European community that seek to uphold the primacy of human rights and due process, particularly when made vulnerable by antiquated state structures and legal institutions. The clear trend has been to favor the sanctity of individual liberties over the preservation of traditionalist and vanguardist policies. What is manifest in the Constitutional Reform Act 2005 – and indeed is its overarching theme – is that it is a reflection of the Government’s response to the growing sensitivity of the judiciary to the fundamentals of the British Constitution and the need to observe them. At best it is a landmark policy shift that will yield clear benefits to those who come to the courts of law to seek redress. At its minimum, it sets the tone for a State agenda that is willing to dismantle existing infrastructure, if need be, to recognize the primacy of civil liberties and human rights. Under the former arrangement, judges are appointed by the Lord Chancellor, who is a member of the Cabinet and effectively the Minister of Justice. Also, the Lord Chancellor and Lords of Appeal in Ordinary (who constitute the Appellate Committee of the House of Lords – the law lords) sit as well in the House of Lords, which is part of the legislature. According to Lesley Dingle and Bradley Miller in their paper “UK Constitutional Reform”, (Dingle and Miller, 2004, Internet), these considerations make it difficult for judges to remain politically-impartial. Section 3 of the Act states that, “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.” Further, the Act reduces the role of the Lord Chancellor with respect to the judiciary and no longer makes it possible for him to act as both a government minister and a judge. This is by way of complying with the due process and fair trial principles enshrined in the European Convention on Human Rights, and other international conventions. (Wikipedia, 2005, Internet) Secondly, the Constitutional Reform Act of 2005 prescribes lengthy and detailed guidelines for the judicial discipline. Under Section 62, an Ombudsman will be appointed by the Queen upon recommendation by the Lord Chancellor. Section 108, on the other hand, lays down the rules for disciplining an errant judge.5 The absence of a formal complaints procedure is now to be made good by conferring powers on the Judicial Appointments and Conduct Ombudsman relating to discipline and complaints against judges. (Ibid.) What this seems to suggest is that, while a party-litigant may appeal an unfavorable decision, he or she has the option of filing a complaint against a judge whom he or she perceives to have acted with grave abuse of discretion, or perhaps with such a brazen demonstration of impartiality and bias. While it is certainly not healthy to have judges and their decisions always vulnerable to attacks from disgruntled party-litigants, this abused can be checked by a robust and efficient grievance mechanism with clear standards or criteria on what complaints may be entertained. At the end of the day, an added layer of protection against judicial impunity for the ordinary citizen, has more benefits than drawbacks. Though the Act has been seen as controversial at its inception, it cannot be denied that the reforms it has introduced bodes well for a more stable and more responsive legal system. Indeed, it demonstrates a more marked sensitivity to the need to uphold the basic principles that animate and underlie the mature and robust British democracy. It is a departure from the past, yes, but more importantly, it is a return to what truly matters – fundamental freedoms, the highest standards of fairness, and the law as a reflection of the aspirations of its citizens. Works Cited Dingle, L and Bradley M.. UK Constitutional Reform. 21 June 2004. visited 28 December 2006. Hoffman, D. & Rowe, J. (2003). Human Rights in the UK: An Introduction to the Human Rights Act 1998. London: Pearson Longman. Mowbray. (2002). Cases and Materials on the ECHR, Butterworths. Streeter, T. (1995) Some Thoughts on Free Speech, Language and the Rule of Law. In Jensen, R. and Allen, D. (Eds.) Freeing the First Amendment: Critical Perspectives on Freedom of Expression.31-53. New York University Press. Weinstein, B. “Recent Decisions from the European Court of Human Rights.” American Society of International Law. May 2000. visited 30 December 2006. http://www.asil.org/insights/insigh45.htm Read More