Civil liberties and public order law
- Civil liberties and public order law define the relationship between individuals and society in relation to the exercise of rights and freedoms which affect all of society.
- At first sight it is not unreasonable to think that the Human Rights Act 1998 would cover every situation relating to rights and freedoms.
- This is not yet the case, although the 1998 Act is reaching deep and wide into all aspects of law, and all laws may come to be judged according to the standard set by the European Court of Human Rights.
- The impact of the Human Rights Act on the areas to be discussed in this chapter varies
- In relation to discrimination, for example, the 1998 Act provides no generalised right to non-discrimination on the basis of gender, race or nationality, but rather provides that all the substantive rights protected under the European Convention on Human Rights (ECHR) shall be enjoyed without discrimination.
- By contrast, domestic law had made provision for protection against sexual or racial discrimination long before the Convention rights were incorporated under the 1998 Act.
- When it comes to the rights of assembly and association, however, there is Article 11 of the Convention, which specifically regulates this area, and the provisions of domestic law are being – and will continue to be – tested against Convention standards.
- The latter point is also true in relation to freedom of expression, which is protected under Article 10 of the Convention; its application by the domestic courts has already had a substantial impact on the law, most particularly as we shall see below, on the individual’s right to privacy from intrusion by the media.
- The law relating to public order is the means by which freedoms and rights are defined and restricted for the greater good of society.
- The right of freedom of assembly, for example, is one which is capable of disrupting the rights of others to move along the highway or to enjoy public spaces free from interference.
- It is equally important that when one group intends to exercise its rights it should not damage interracial relations or come into physical conflict with groups holding opposing political views.
- Accordingly, in the interests of public order certain requirements are laid down for the organisers of demonstrations and processions and for those organising mass gatherings for entertainment or other purposes.
Freedom from discrimination,freedom of expression and the right to associate and assemble with others to exchange opinions are the hallmarks of a civilized democratic society.
- The traditional approach to such freedoms and rights – under the UK’s unwritten constitution – is to view these as freedoms to act other than where the law restricts the activity in question. In the past, this approach in times past may have sufficed, but nowadays when the emphasis is on non-discrimination – whether on the basis of sex, gender, age or race – the emphasis on freedoms has proved deficient. British society today is multicultural and multiracial and there has been a proven need for statutory protection against discrimination.
- Parliament intervened to protect citizens against discrimination on a piecemeal basis, as the situation required. While in this course we focus on non-discrimination, freedom of expression, freedom of assembly and association, it must be recognised that there are numerous other rights and freedoms which have long been protected under the law.
- The right to trial by jury, for example, is traceable to the Magna Carta of 1215, in which the ancient writ of habeas corpus (though little used and overshadowed by the availability of judicial review, the European Convention on Human Rights and now the Human Rights Act 1998) still exists to challenge the legality of a person’s detention. Furthermore, the whole area of police powers – and their control – is an important aspect of civil liberties law.
- your knowledge of that subject into Public Law. For example, the individual’s freedom is protected by rules relating to arrest and the power of the police to stop and search suspects.
- Freedom is also protected by the requirement that any surveillance by the police, or invasions of privacy through interception, should be authorised under statute.
- Deficiencies in the protection of civil liberties have led to calls for reform for a long time: the Human Rights Act 1998 (discussed in Chapter 15 of this Guide) now provides the jurisdictional base for many challenges to be tested in the domestic courts.
- Freedoms and rights carry with them responsibilities. One person’s freedom may be another person’s loss of freedom. Freedom of speech, for example, cannot be exercised by all at the same time, for no one would be heard.
- Accordingly there need to be restrictions which maximise each individual’s sphere of freedom in a manner consistent with the freedoms of others.
Equality and freedom from discrimination
- The right to equal treatment under law is a fundamental requirement of a civilised society.
- Under English law the Race Relations Act 1976 provides protection against discrimination on grounds of race in relation to employment, education, housing and the provision of goods and services.
- The Sex Discrimination Act 1975 and Equal Pay Act 1970 protect workers from discrimination on grounds of sex and the Disability Discrimination Act 1995 protects against discrimination against the disabled.
- In addition, European Community law protects workers. The European Convention on Human Rights does not provide a general right to non-discrimination, but Article 14 provides that the substantive Convention rights are to be enjoyed without discrimination on grounds of `sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. In order to decide whether discrimination is lawful or not, it is necessary to examine three different sources of law, namely statute, EC law and the ECHR.
Freedom of expression
- The right to express and exchange information and opinions lies at the heart of the democratic process.
- Without freedom of speech there could be no political dialogue, no criticism of government or freedom of debate. Freedom of speech, however, cannot be unrestricted: there must be legal restrictions which ensure that the exercise of free speech does not injure the rights and freedoms of others.
- In order to understand the scope of the freedom, therefore, it is necessary to consider the range of limitations imposed upon it. It is also necessary to consider Article 10 of the ECHR, which guarantees freedom of speech, again with the limitations on its exercise.
The restrictions on freedom of expression under English law may be summarised as being:
the law of defamation (libel and slander): see Bamett, pp. 566-569
the law relating to sedition, incitement to disaffection: see Barnett, pp. 569-570
the law relating to racial hatred: see Barnett, p. 570 and see also p. 604
the law relating to inciting a breach of the peace: see Barnett, pp. 591-593
the law relating to pornography: see Barnett, pp. 570-573 11
restrictions on broadcasting: see Barnett, pp. 572-574
conspiracy to corrupt public morals: see Barnett, pp. 574-575 11
blasphemy: see Barnett, pp. 575-576 contempt of court: see Barnett, pp. 576-580 0
the law relating to official secrecy: see Barnett, Chapter 25
the duty of confidentiality: see Barnett, pp. 580-582
the law relating to terrorism: see Barnett, Chapter 25.
Article 10 of the ECHR and the Human Rights Act 1998
- Paragraph 1 of Article 10 provides for the `right to freedom of expression’ which includes the freedom to hold opinions and to receive and impart information and ideas without interference.
- However, as with domestic law, there are a number of restrictions which are imposed and set out in paragraph 2.
Freedom of assembly and association
- English law has never recognised a clear right to assemble or process.
- Consistent with the traditional stance on civil liberties, citizens are free to assemble, demonstrate and process provided that their conduct does not offend any legal rules.
- As with freedom of expression, with which freedom of assembly and association is inextricably linked, it is necessary to consider the restrictions which are placed on the activity.
- The underlying objective of the law – and the basic dilemma for law – is to seek a balance between the individual right to assemble and associate and the rights of others to freedom of movement and freedom from public unrest.
- Article 11 of the ECHR does recognise a specific right to peaceful assembly and freedom of association, subject to a number of legitimate restrictions on this right (see further below).
Restrictions under English law
The right to assemble and associate is limited by the following areas of law:
the law relating to obstruction of the highway
statutory rules regulating meetings and processions, including the power of the police to regulate a demonstration
restrictions on membership and support of proscribed organisations
the law relating to breach of the peace obstructing the police
public order offences of affray, riot, violent disorder and racially aggravated offences.
Article 11 ECHR
- Article 11 protects the right to peaceful assembly and the right to form and join organisations – such as trade unions – for the purpose of promoting a particular cause.
- As with other Articles, the rights of assembly and association are qualified rights which may be restricted lawfully in the interests, inter alia, of the rights of others and for the purpose of preventing disorder or crime.
- The right to association protects group membership rights, and includes the right not to join a trade union. Restrictions – whether direct or indirect- on membership will be tested for lawfulness against article11
Public order law
- Public order law regulates a number of different activities and situations with the overall aim of ensuring that there is a generally peaceful society in which all can enjoy equal rights and freedoms.
- As such, public order law limits rights to freedom of expression and freedom of assembly.
- The law is contained in two principal sources –
- common law and
- The Public Order Act 1986 and the Criminal Justice and Public Order Act 1994 are the principal statutes.
- you should be aware of the many public order offences such as riot, violent disorder, affray and the use or threat of insulting words or behaviour.
- You do not need to study these in depth but should be able to explain the offences and discuss their impact on civil liberties.
- the power of the police to control public assemblies and processions also need to be studied.
- The Public Order Act 1986 requires that notice is given to the police of intended processions and the Act empowers the police to impose conditions on marches and, where serious public disorder is likely, to ban processions. Similar provisions apply to intended assemblies.