Con and Ad Coursework
The Human Rights Act received royal assent in November 1998 and was implemented in October 2000. It is an act, which confirms the fundamental rights and freedoms, which every individual is entitled to in the UK. The Human Rights Act 1998 includes a list of articles, which disclose the different types of rights. An example being; Article 10, which is the freedom of Expression. This Article can be suggested for part A of the scenario. The Human Rights Act can be used to see whether the Chief Constable is infringing Felix’s and the CRUK rights.
The Human Rights Act 1998 confirms the fundamental rights and freedoms, which are listed from Articles 2 to 14. Every individual is entitled to these in the UK. The Convention Articles listed in s 1(1) are ‘given effect’ by s 1(2) of the act. S1 (2) ‘Articles have effect for the purposes of this Act subject to any designated derogation of reservation’. Derogation is lessening or restriction of the authority, strength, or power of a law. The Convention of the Acts decides whether the rights have been breached. In the scenario, Felix’s rights are being infringed by the Chief Constable’s conditions. S2 (1) says that ‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights’ . If Felix or the CRUK take a human rights breach to court, the court must consider previous decisions by the European Courts Of Human Rights, but they are not bound by those decisions. In S3 (1) it states that ‘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’. That being the case, the Chief Constable in the scenario must follow the regulations.
A public authority is when someone acts within the interest of the public. Under S6 (1) it states that ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’ . This therefore links back to how the Chief Constable has applied certain conditions to the protest, which CRUK and Felix Samson will be participating in. In S6(3) it states ‘in this section public authority includes a court tribunal and any person certain of whose functions of a public nature’ . For example, the Chief Constable is an example of a public authority figure as he acts within the interests of the public, therefore performing in a way the public wants/needs him to. In addition to this, in the case of YL V Birmingham City Council 2007 ‘ the claimant was not exercising functions of a public nature within the meaning of s.6 (3)(b) of the 1998 Act’.
Under S7 (1) ‘A person who claims that a public authority has acted in a way which is made in section 6(1) may bring proceeding against the authority under this Act in the appropriate court or tribunal, or rely on the convention right or rights concerned in any legal proceedings but only if he is (or would be) a victim of the unlawful act’. If the Chief Constable has breached the rights of Felix or the CRUK then they have the option to take it to court and show evidence that a breach has happened. Under S7 (7), it claims that:
‘For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act’.
If Felix or the CRUK were a victim, they would be able to bring the Chief Constable to court. Under Article 34 of the Convention it states:
The court may receive applications from any person, non-government organisation or group of individuals claiming to be the victim of a violation by one of the high contracting parties of the rights set forth in the convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.
Conditions under this article may link to how Felix or the CRUK go about the Chief Constable. They could send an application to the court on how their rights are currently being infringed by the Chief Constable.
A right, which has been breached in this scenario, is under Article 10 ‘everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. This is because the Chief Constable is inhibiting the right to freedom of expression by stopping the peaceful protest. The restriction is proportionate to the issue. In the Appleby V United Kingdom 2003 case, there were similarities of what occurred with the Chief Constable, Felix and the CRUK. ‘In the instant case, the restriction on A's ability to communicate her views was limited to the entrance areas and passageways of the shopping centre’. ‘A’ had their rights breached, as they were unable to carry out their peaceful protest and were unable to exercise their right to freedom of expression. Another right, which has been breached in the scenario, is under Article 9:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The Chief Constable is limiting Felix or the CRUK from expressing their thought on whether they should encourage the death penalty again. In the case of Begum v Denbigh High School Governors it was said:
The main issues were (i) whether B's freedom to manifest her religious belief by her dress was subject to limitation within the meaning of Art.9(2) of the Act and, if so, whether such limitation or interference was justified, and (ii) whether B had been denied access to education in breach of Sch.1 Part II Art.2 of the Act
This is an example of which an individual has not been allowed to have their right to manifest their religion, because authority outline that they are not allowed to wear their religious clothing whilst in education. Due to this, the student has had to take on challenges, which have prohibited them to stay in proper education. Lastly, Article 11 states that ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests’. Therefore in the scenario, Felix or the CRUK should have the right of freedom to carry out their peaceful protest. The Chief Constable would be infringing this right if he does not allow them to do this. An example of a case, which includes this Article, is the (Gallastegui) v Westminster City Council (2013).
‘The interference was not prescribed by law because the circumstances in which it was unlawful to use a tent were not sufficiently clear; (4) the sections did not pursue a legitimate aim; (5) even if they did, they amounted to a blanket ban on tents and were not proportionate; (6) in any event, they did not satisfy the state's positive obligation to facilitate the exercise of art.10 and art.11 rights; (7) there was no access to courts as required by art.6.’
This shows that because there isn’t a legitimate aim, they aren’t allowed to carry out a peaceful protest.
The first three conditions’ that the Chief Constable set was that the demonstration must be held 20 miles from Penfield City Centre, that it had to have fifteen demonstrators as a maximum who had to attend and that it should take two hours. These three conditions eliminate the freedom of expression, therefore breaching Article 10. In addition to this, it also breaches Article 11, which is the right to peaceful assembly which Felix and the CRUK are being deprived of, as they are a victim of having their rights being breached. Although, under Article 11 it states
‘No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’.
Therefore, authority can set a location condition, if they feel it could be a threat to public safety, so the reason to this could be rational. In condition two, Felix’s and the CRUK are not allowed to have anymore than 15 people involved with their protest. This is taking away their right to freedom of assembly and association, under Article 11. However, the Chief Constable can set these boundaries if it is proportionate to the threat of a disturbance to public safety. This can also be said for condition three, if the protest lasted longer than two hours, there could be a greater risk of a violent outburst. Therefore, the Chief Constable could say he is preventing any disturbance for public safety. In condition four, the Chief Constable set a restriction that there should be ‘no public speeches’. Nevertheless, under Article 10 of the Human Rights Act, everyone has the right to freedom of expression. The Chief Constable is allowing Felix and the CRUK to be deprived of this right. Finally, for the fifth condition, the Chief Constable said that in the event of any counter demonstration or hostility shown towards CRUK members, the Penfield Police reserve the right to cancel the demonstration immediately. This is rightly done so, in order to protect the public from harm or violence that the protest causes. It is legitimate reason to cancel the protest.
To conclude, if Felix or the CRUK cause a disruption or their protest becomes a danger for public safety, then the conditions set by the Chief Constable would be justified. However because Felix or CRUK hasn’t done this in the past or given a reason for the Chief Constable to not trust them, then the Chief Constable should allow them to have the freedom to their peaceful protest. Public safety would be the top priority for the scenario, but they should also have freedom if it is peaceful.
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.
Due to the fact that Parliament can make or unmake any law, they are able to allow the Death Penalty 2018 to take course. No court or body can question the validity of an Act. Therefore, the Death Penalty 2018 will not be discussed for its validity by the courts as the government has approved it and the Bill has been passed. The Orthodox theory includes Dicey’s version of Parliamentary Sovereignty and what he states are the positive and negative features. The positive ones include that ‘concept that Parliament can produce or abolish any law they want with a simple majority of votes of the House of Commons’ members’ . However a negative feature is that an Act of Parliament cannot be reformed or removed from use by any court in the United Kingdom. This means that once it has been finalised and becomes an Act under Parliament, British courts do not have consent to retouch that act, therefore making it harder to change or abolish the Act if needs be. This can be seen as negative in this scenario, because once the Death Penalty Act is in place; the people who use it can take advantage of it and may use it wrongly. In addition to this, people may be sentenced to death for a crime that isn’t proportionate to the Act. Parliament can legislate on any subject; an example is the ‘R (on the application of miller) v secretary of state for exiting the European union case’:
An important aspect of Parliamentary sovereignty was that primary legislation was not subject to displacement by the Crown through the exercise of its prerogative powers. However, the constitutional limits on those powers were more extensive. The Crown only had powers recognised by the common law, and their exercise only produced legal effects within boundaries so recognise.
Parliament can legislate retrospectively which means:
‘takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past’ .
The death penalty for murder was abolished in the UK in 1965. This can be considered by Parliament when creating the new Act. Furthermore, within the theory of Parliamentary Sovereignty, the Courts cannot bind future Parliaments. The Death Penalty Act cannot be bound by future Parliament as the current one already passed the Bill. Future parliaments however cannot abolish the existing act, but they can create a new act.
Under the Human Rights Act 1998, the death penalty as a punishment would not be considered. This is because under Article 2 it states that
‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law’.
This is evidence to the fact that the Act would be a breach of Human Rights as this Article protects individuals from death, even if they have acted against the law. However, this Article also stops people from making their own decisions. An example of this is the ‘ Pretty V United Kingdom 2002’. This case includes a ‘woman who suffers from an incurable disease who wanted to control when and how she died’ . She wanted the help from her husband, who agreed. However, the European Court of Human Rights said ‘there was no right to die at the hands of a third person or with the assistance of a public authority’ . Therefore, he would be considered accountable for a death. However, under this article it also states that there are exceptions when a public authority such as the police has to do so if it stops the individual from causing unlawful violence, stopping them from escaping lawful detainment and if it inhibits a riot. The ‘force used must be essential and strictly proportionate’.
If the Human Rights agreed to the death penalty, they would have to change their articles.
Under section 4 of the Human Rights Act, it states that if ‘ the provision is in incompatible with the convention right … it may make a declaration of that incompatibility’ .
Under S4 (6) it states ‘A declaration under this section (“a declaration of incompatibility”)—(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’.
To conclude, in part B (1), under Parliamentary Sovereignty it, the Death Penalty Act would be valid. This would be because it is retrospective,