European Union Law and the European Convention on Human Rights - Essay Example

 The Ferret after It Is Prosecuted Under Section 5 as to How It Can Rely Upon European Union Law and the European Convention on Human Rights This question must be answered on two levels. The first level has to do with the substantive aspect, ie, reckoning the competing rights of “free speech” and “religious freedom” and then solving it by using the existing European Convention on Human Rights. The second level is procedural, or whether or not the passage of the Act has complied with the legal requirements for passing legislation. On the first level, 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 becomes more difficult when the right to free speech competes with another right, in this case, the right of religious minority groups to tolerance and acceptance. 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. (De la Cruz, 2002) 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. As stated by Streeter, “Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages.” (IBID.) In this situation, it is clear that the European Convention on Human Rights secures both the right of the media to free speech, as well as the right of marginalized groups. But since the task is to find a basis to defend the newspaper in the existing Human Rights Convention, then it may be argued that the right to free speech is indeed a cherished ideal and is considered a sacrosanct freedom. If one compares the violation to the newspaper and the violation to the Muslims, without meaning to denigrate their suffering which we know is starkly real, the right against censorship and prior restraint appears to be more serious, than the right to “not be mocked.” Mocking words are but manifestations of ideas – ill-formed ideas, yes, but ideas nonetheless – that are best refuted by better ideas in a free market of thought and discourse. Censorship, on the other hand, especially if state-sponsored, is a more chilling malady that does not bode well for robust democratic institutions. On the second level, it would do well for The Ferrett to argue that the Act itself violates the European Convention on Human Rights and is thus procedurally-infirm. The European Court of Human Rights requires a synchronization of domestic laws before one becomes a member of the European Union. That is why member-countries were required to abolish the death penalty before they joined. In this case, given that there is a clear pronouncement in the Human Rights Convention with regard to free speech, there is a disjunct between national law and European Union law that makes a compelling argument to declare void the recently-passed Regulation of the Media Act 2005. To quote from the Convention, “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Second Question. Explain what public order issues arise from the march by the Muslim protestors and the subsequent arrest of those who went towards the Danish embassy. Το what extent do the actions of the police comply with the European Convention on Human Rights. The march itself, with the necessary permit, is valid. It is also an expression of free speech as much as the Danish newspaper’s report is an expression of free speech. However, when the Muslim lads stormed towards the Danish embassy, then that may be considered beyond the ambit of free speech and there is a valid public order issue at stake. Pursuant to treaty law, an embassy is an extension of another country’s sovereign soil and therefore, care must be taken not to disrupt or be party to the disruption of peace and order in an embassy. It is my belief that there was a valid apprehension that took place. However, absent any showing that the apprehended individuals were apprised of their rights when they were apprehended or were given the benefit of counsel, then this is a violation of the European Convention on Human Rights, for the ECHR protects the rights of the accused. This might be a particularly sensitive issue, given the fact that those detained come from a “vulnerable class”, a racial minority group, which is protected under European Union Law. In fact, that is the reason why the office of the High Commissioner of National Minorities was created – to address issues of racial violence and discrimination. Third Question. Examine whether The Daily Bugle may be held in contempt of court for the articles it has printed in relation in the protestors above. Contempt has been defined as “disobedience to the Court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience of the court’s orders but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice.” (Rex Law Dictionary, 2006) In this case, this writer is of the belief that the Daily Bugle may be held in contempt of court because its actions tended to suggest that the court can be dictated on what it should do and how it should rule. In the first place, the duty of the court is to hear the case on the charges of public order, because that is the reason why the accused were detained. They were not detained in relation to the controversial Act. They were detained for their unruly behavior. In sum, what the Daily Bugle was trying to do was to manipulate the court to act in a certain way. Certainly, this act is an act that questions the court’s “authority, justice and dignity.” Moreover, the newspaper violated the sub judice principle, which essentially states when a case is pending in court, one is not allowed to comment on how the court should act, or whether or not it should decide in a certain way. This gives rise, indeed, to an action for contempt. Fourth Question. Explain what is meant by the 'manner and form' argument and showed how it may be raised in relation to the failure of the minister to make α statement of compatibility with the European Convention on Human Rights. Can you think of any other ways in which the legality of this act may be challenged 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. 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. Clause 5 of the Bill states: "It shall be an offence to publish any article which causes offence to any religious group." It is too difficult and requires too much judicial discretion to determine if something is offensive or not. This renders the Act vulnerable to interpretation and misinterpretation. PART B. "Ι have been taken to task for describing our system of government as αη elective dictatorship 1 remain wholly unrepentant." Is Lord Hailsham's description accurate in describing the effectiveness of Parliament in controlling α government with α substantial majority in the House of Commons? Perhaps in the past, this statement might have been true. It was an “elective dictatorship” wherein the system of government gave Parliament an inordinate amount of control that, if left unchecked, could lead to many abuses and dangers. However, there has been a paradigm shift at present that has contributed substantial improvements on how government is run. 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) It has been said that any new legislation must always be viewed against the backdrop of its contextual realities. Hence, on the issue of judicial independence, illuminating are the questions posed by the Select Committee on the Constitution, 5th Report of Session 2005-2006: “Does it have any application to ministers who publicly ask for judges to be tough on suspected terrorists, or who threaten the courts with the prospect of amending legislation if they do not give effect to current government policy?” 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. Before this, there has been no prescribed procedure for making complaints about the conduct of judges, although in recent years, the Lord Chancellor has in fact received many such complaints and has dealt with these in various ways, with various degrees of publicity. (Select Committee on the Constitution, 2005). 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. De la Cruz, R. Rainbows of Gray: Analyzing Sovereignty, Free Speech and Probable Cause Using the CRS Framework. Unpublished. (2003) Dingle, L and Bradley M.. UK Constitutional Reform. 21 June 2004. visited 23 May 2006. House of Lords Select Committee on the Constitution. 5th Report of Session 2006. Constitutional Report Act 2005. Report with Evidence. 13 December 2005. Published by the Authority of the House of Lords. Streeter, T.. Some Thoughts on Free Speech, Language and the Rule of Law. 1995. Wikipedia, the Free Encyclopedia. 12 May 2006. The Constitutional Reform Act 2005. 24 May 2006. http://en.wikipedia.org/wiki/Constitutional_Reform_Act_2005 Read More