Human Rights Act

Institution Affiliation

Introduction

The case relates to the Human Rights Act 1998 and the Public Order Act 1986.  The Human Rights Act (HRA) 1998 relate to rights and freedoms assured under the European Convention on Human Rights (ECHR). The rights and freedoms represented under the Convention related to HRA are the freedom of expression, the freedom of thought, conscience and religion; the freedom of assembly and association; the right to liberty and security; and the prohibition of discrimination in order to protect other rights.[1] Section 1 of the Act focuses on the conventional rights that are set out in Articles 1 to 3 of the First Protocol, and Articles 2 to 12 of the ECHR. Section 2(1) the Act stresses that a UK tribunal or court must put into consideration any pertinent decision declaration, judgment, or advisory opinion of the ECHR and the significant opinions as well as decisions stipulated under the European Commission of Human Rights.[2]

Section 6 of the Act has placed the duty on public authorities not to act contradictorily with specific freedoms and rights derived from the ECHR. Thus, under S6, stipulates that is it unlawful for any public authority in their capacity to act in a manner that is discordant with a Convention right. However, s6 provides exception to this in cases when the public authority gives effect to dissenting primary legislation. In addition, the exception is provided in case the primary legislation prohibits the public authority from acting differently. Nonetheless, if a public authority proposes or acts in an incompatible manner, then proceedings could be filled under s7 of the Act. Those affected such as a victim of the proposed claim or the action can be required to bring the proceedings[3]. The requirement by s3 is for the tribunals and courts to interpret all the available legislations in a manner that is attuned with the Convention freedoms and rights.

The purpose of this paper is to advise and give reasons on whether Yusaf Smith and/or Students in Support of International Students (SISIS) can use the Human Rights Act 1998 to challenge the decisions of the Chief Constable or the actions of Parliament should it pass the Bill.

Facts and Issues

The emerging issues are the Parliament would like to pass a Bill that limits the numbers of overseas students, and particularly those from certain states who are thought to be associated with religious based terrorist activists. The other issue is that the HRA 1998 protects the students and protects them from any form of discrimination. Lastly, the police can take actions and monitor the movements of the SISIS movement.

The facts are that SISIS is opposed to limiting international students and has several hundred members and thousands of supporters across the UK. The SISIS has proposed a UK wide demonstration against the proposed legislation to take place on the 13^{th Dec} 2016. The Bruddersfield group members are proposing to march in Bruddersfield City Centre on that day. The Chief Constable is aware of the proposed protest, and has issued a notice to SISIS and Yusaf Smith, under the Public Order Act 1986. Thus, to consider if the HRA 1986 can be used challenge the decision made by the Chief Constable Bruddersfield, it is imperative to put into the consideration the Act in conjunction with applicable statutes, cases, and conventions involved.

Application of Relevant Laws and Cases

The question to be answered is whether Yusaf Smith and/or SISIS can use the Human Rights Act 1998 to challenge the decisions of the Chief Constable or the actions of Parliament should it pass the Bill. According to the S1 of the HRA, all the people’s rights and freedoms must be protected under the law and the ECHR. The rights and freedom for Smith and SISIS are: freedom of expression, the freedom of thought, conscience and religion; the freedom of assembly and association; the right to liberty and security; and the prohibition of discrimination in order to protect other rights.[4] Thus, Smith and SISIS are protected under the articles listed. Section 3(1) for a primary or subordinate legislation to be effective, it has to be read and given consideration in a manner in which it is competition with the ECHR Convention rights.[5] According to the HRA 1998 s 6(1), it is against the law for a public authority to act in a way manner that companionable with a convention right. In addition, s3 of HRA 1998 offers that primary and subordinate legislation have to be interrelated in a manner that is compatible with Convention rights.[6]

Freedom of expression is a fundamental right that must be exercised in a modern democracy. The group, collectively and individually, under the HRA have the rights of peaceful assembly, freedom of association, and freedom of expression.[7]  Articles 10 and 11 have set exceptions in which the freedoms and rights cannot be exercised. In Steel v UK, it was concluded by the ECHR that all kinds of protest which can without any doubt be construed as the expression of opinion, are protected by article 10.[8] Moreover, any form of restriction which have been placed by public authority on a peaceful public meeting, demands the court to deliberate on the demands stipulated under Article 11.[9] In R v Chief Constable of Gloucestershire and others,[10] by remarks by Lord Woolf CJ were that Articles 10 and 11 protect the rights to freedom of assembly, expression, and association. In addition, they are respectfully protected under the ECHR and applicable in any fully functioning democracy.[11] Thus, any form of instruction by the public authority on the rights by either intervention of a Statute Law or through the development of a common law must be scrutinized by the court. 

Section 7 of the HRA stipulates that: ‘a person who claims that a public authority has acted or proposes to act in a way that is unlawful under the Act may bring proceedings against the authority under the Act in the appropriate court or tribunal, or may rely on the Convention right concerned in any legal proceedings.”[12] Thus, SISIS and Smith have the right to impose the conditions, which can be regarded as unlawful. The imposed conditions have overreached the legislation scope and the police the police have no power under the Act to enforce conditions two, four, six, and seven. The Chief Constable relied on s14 of the Public Order Act 1986 in this case to rationalize the conditions imposed.[13] Although the government can limit the freedom and association of Non-UK nationals in an event of threat by such persons to national threat, the police should not overstep its mandate. The derogating measures are not required because none of the participants and members of the SISIS were linked to terrorism or classified as threat to national security.

With regard to intrusion with convention rights of the SISIS and Smith, the set conditions do not align with HRA. For instance, the first condition, stipulates that the demonstration to be held by the SISIS between 1st December 2016 and 1^st February 2017 must be at least 15 miles from the Bruddersfield City Centre, nullifies the effect of the message and this can be interpreted as a ban. Furthermore, the conditions to disallow public speeches, to restrict the demonstration to maximum of 4 hours, and to limit number of demonstrators to 50 infringes on article 10 and 11, s1 of the HRA.[14] Condition six stipulates that the Bruddersfield Police has reserved right to stop the demonstration with immediate effect in case of counter demonstration. The ECHR has held that the state is under a duty to protect citizens wishing to exercise their right to freely assemble against counter-demonstrators. In Ärtze für das Leben v. Austria[15] it was concluded that, the right to counter demonstrate should be a reason to stop the right by other groups to demonstrate.

The fundamental human rights promote security and liberty to all persons. According to Article 5 of the HRA[16] every individual has the right to security and security and no one should be deprived such. In the UK, the government and state agents have the power to detain non-national terrorist suspects if they are a threat to the national security. It can be argued that the Police Constable could have applied a derogation order to protect national security. Nonetheless, Articles 5(1), 5(4), and 5(5) and not s3 were violated. In A v United Kingdom[17] it was established by the ECHR that breaches of breaches of Article 5(1), 5(4), and 5(5) were violated. Although no arrests were made in the case of SISIS and Smith, the conditions were discriminating and unjustifiable. Discriminating against non-national because of their national and treating them as terror suspects is against s1 of the HRA.

Yusaf Smith and/or SISIS can thus use the HRA 1986 to launch a judicial review related to the conditions set by Police Constable and the need to pass a new Bill. S7 has set out parameters related to the Protection Act, which can be used by Yusaf Smith and/or SISIS.[18] Stather[19] contended that s7 requires any persons with claims of unlawful acts by public authority to depend on the Convention rights. In addition, s6 (1) and s6 (6) of the HRA have defined an unlawful act the failure to act in a manner in which is incompatible with s1 and the Convention rights.[20] 

Conclusion

Based on the facts of the case and its analysis, it has been demonstrated that the conditions that were imposed by the Chief Constable directly interfere with Yusaf Smith and/or SISIS convention rights. Therefore, Yusaf Smith and/or SISIS can use the HRA as enshrined under the ECHR to challenge the decision made to enhance a judicial review. In addition, the proposed Bill by the Parliament is incompatible with the existing Convention rights. This is because the Convention rights are not included in the proposed Bill. Article 10 and 11 protect the demonstrations under freedom of expression, assembly, and associations. Sections 1, 2, and 3 of the HRA also safeguard the welfare of SISIS and Smith. The HRA 1998 can be used by Yusuf and SISIS to launch a judicial review against the discrimination by the police and the Parliament. The conditions set by the Police Department are against HRA and the Convention Rights. Moreover, the State has the duty and responsibility of protecting those exercising their right to freely associate and assemble against any form of counter demonstration. The imposed conditions by the chief Constable have overstepped the scope of the legislation, in spite the need act in the manner when issues of national security are raised.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

Books

Groeben, Constantin von der, and Claus Kreß. Transnational Conflicts and International Law. Norderstedt: Books on Demand, 2014.

Steele, Jenny. Tort Law: Text, Cases, and Materials. Oxford: Oxford University Press, USA, 2010.

Other Written Sources

Government of UK. “Considering Human Rights Claims (2015) 1 < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257425/consideringhrclaims.pdf> accessed 08 November 2016.

Government of UK. Human Rights Act 1998 (1998) 1 < http://www.legislation.gov.uk/ukpga/1998/42/data.pdf> accessed 08 November 2016.

Lech Garlicki, ‘Article 10 of the European Convention on Human Rights and Limitations of Freedom of Expression' (Report) (1 October 2003) CDL-JU(2003)33 <http://www.venice.coe.int/docs/2003/CDL-JU(2003)033-e.asp> accessed 19 December 2007.

Neil Parpworth & Katharine Thompson, ‘Challenging the Lawfulness of Conditions Imposed on a Public Assembly' Justice of the Peace/2005/Issue 42 (15 October 2005) 169 JPN 808. LexisNexis Butterworths, 2008

Stather Jukie, ‘The Rise and Rise of Damages in Human Rights Claims (2015) 1 < http://www.familylawweek.co.uk/site.aspx?i=ed143158> accessed 08 November 2016.

Table of Cases

A v United Kingdom [1998] 2 F.L.R. 959 (ECHR), 1998

Ärtze für das Leben v Austria (1988) 13 EHRR 204,

R (Laporte and others) v Chief Constable of Gloucestershire and others[2004] EWCA Civ 1639

Steel v United Kingdom (1999) 28 EHRR 603 at para 92.

Statutes

Human Rights Act 1998

Public Order Act 1986