APPENDIX 14 (continued)
Memorandum submitted by Mr William Thompson,
MP
The Common Law
92. This is judge-made law, and may be traced—following
the rules of precedent—from old cases. As noted, the 1688-89
Bill of Rights made reference in its long title to "the rights
and liberties of the subject". The second—declaratory—part
makes reference to "ancient rights and liberties", and
to "[the subject's] undoubted rights and liberties".
93. English constitutional lawyers—such
as Austin, Dicey and Jennings—have never doubted that there
is freedom of assembly (though it has been seen as an aspect of
freedom of expression.) Dicey's Law of the Constitution (first
published in 1885) contains a chapter on "the right of public
meeting" plus an extensive note in the appendix.[99]
However, such a right (as noted above) exists only in a context
of the rights of others and the rule of law, either common law
or statute. Jennings referred, discussing the right of assembly,
to "the tautological principle that everything is lawful
which is not unlawful . . . The question to be discussed in each
case is the nature of the legal restriction. The "right"
is the obverse of the rules of civil, criminal, and administrative
law."[100]
Everyone—in roads law—has the right to pass along
the highway, but not to wilfully obstruct; unreasonable obstruction
is a public nuisance. But public order—a constitutional
rather than strictly criminal notion—, governed in England
and Wales by statute (Public Order Act 1936 and Public Order Act
1986), has been the guiding concept. Associated with this is the
notion of breach of the peace[101]
and the related common-law offence of unlawful assembly.
94. Relevant cases are:
Beatty v Gillbanks (1882) 9 QBD 308:
Members of the Salvation Army in Weston-super-Mare
marched on Sundays, attracting hostile crowds (including the so-called
skeleton army). They were bound over to keep the peace, having
been convicted of unlawful assembly. Their appeal succeeded, the
Divisional Court holding (despite the facts in the case stated
by local justices)—on 13 June 1882—that they could
not be prohibited from assembling because their lawful conduct
might encourage others to act unlawfully.[102]
Field J, Cave J concurring, held that the natural consequences
of lawful activity did not include unlawful activity, even if
the accused knew that others would so react: "Now I entirely
concede that every one must be taken to intend the natural consequences
of his own acts, and it is clear to me that if this disturbance
of the peace was the natural consequence of acts of the appellants
they would be liable, and the justices would have been right in
binding them over. But the evidence set forth in the case does
not support this contention; on the contrary, it shows that the
disturbances were caused by other people antagonistic to the appellants,
and that no acts of violence were committed by them". (314)[103];
R (Robert Orr & Others) v Justices of Londonderry
(1891) LR Ir 440:
An Irish case, also involving the Salvation
Army, where Beatty v Gillbanks was argued but held by Holmes
J to have no application: Salvation Army paraded in Ferguson Street,
Londonderry with a band (contrary it seems to bye-laws) on Sunday,
10 May 1891, witnessed by a large (catholic?[104])
crowd; the police, anticipating a breach of the peace (on the
basis of a riot four years previously), remonstrated in vain.
The court held that orders to find sureties to keep the peace
and be of good behaviour could not be sustained, there being no
evidence (which was examined) of any act of hostility on the part
of the paraders, or of the crowd;
Wise v Dunning [1902] 1 KB 167:
Divisional Court held that a protestant preacher
in Liverpool, George Wise, liable to be bound over to keep the
peace, because he habitually accompanied his public speeches with
conduct calculated to insult Catholics;[105]
Lord Alverstone CJ, finding the authorities not relevant, stated
that Beatty v Gillbanks was not inconsistent with the Irish
cases (breach of the peace not natural consequence of acts of
the appellants)[106]:
"the police and the magistrates were right in thinking that
his language and conduct went very far indeed towards inciting
people to commit, or was, at any rate, language and behaviour
likely to occasion, a breach of the peace." (176-7);
Duncan v Jones [1936] 1 KB 218:
Duncan attempted to hold a meeting in a London
street opposite an unemployed training centre on 30 July 1934
(proclaiming "Defend the right of free speech and public
meeting"), having declined to move to another street, and
having provoked a disturbance inside the centre a year earlier,
and was arrested—and convicted—for obstructing a police
officer in the execution of his duty. The Divisional Court upheld
the conviction, on the ground that Jones had reasonably apprehended
a breach of the peace; Lord Hewart CJ cited Dicey on individual
liberty, and referred to "the somewhat unsatisfactory case
of Beatty v Gillbanks", which he distinguished on
the facts; leave was granted to appeal to the House of Lords,
but there is no report of such a case;
Redmond-Bate v DPP, unreported, 23 July 1999:
Redmond-Bate, a fundamentalist preacher on cathedral
steps, faced with a hostile crowd, arrested and charged with obstructing
a police officer in the execution of his duty. Divisional Court,
overturning conviction, found it had not been reasonable for police
officer to anticipate a breach of the peace. Sedley LJ, distinguishing
Beatty v Gillbanks and Wise v Dunning (and drawing
upon the transcript of Nicol and Selvanayagam v DPP [1996]
CLR 318, 319 per Simon Brown LJ), held that preventative action
had to be directed to the source of the threat. "It is only
if otherwise lawful conduct gives rise to a reasonable apprehension
that it will, by interfering with the rights or liberties of others,
provoke violence which, though unlawful, would not be entirely
unreasonable that a constable is empowered to take steps to prevent
it."
95. An important House of Lords case—decided
by three to two[107]—is
DPP v Jones [1999] 2 AC 240. It will be the starting point
for freedom of peaceful assembly cases in the United Kingdom involving
the public highway. Heard in October 1998 (and decided in March
1999), the Lord Chancellor stated that, if necessary, he would
have invoked article 11 to clarify or develop the common law.[108]
This case on the Public Order Act 1986 was decided entirely on
the basis of English authority, which holds (under DPP v Jones)
that, in addition to the right of the public to pass and re-pass
on the highway, the public has further rights of access before
trespass (a tort in private law) arises.
96. The two defendants, part of a demonstration
on a roadside verge at Stonehenge in 1995, were convicted of taking
part in a prohibited trespassory assembly, contrary to section
14A of the Public Order Act 1986. They appealed successfully to
the crown court, but the divisional court allowed the director
of public prosecution's appeal. The House of Lords reversed that
decision, Lord Irvine of Lairg LC holding that there was a public
right of peaceful assembly on the highway, provided it did not
amount to a public or private nuisance and did not unreasonably
obstruct the highway.[109]
Two English cases—Harrison v Duke of Rutland [1893]
1QB 142 CA[110]
and Hickman v Maisey [1900] 1QB 752[111]—were
considered by their Lordships. The Lord Chancellor concluded of
peaceful assembly: "mere tolerance does not secure a fundamental
right." (259)
Statute Law
97. Reference has been made above to the
Bill of Rights of 1688-89. Since this is declaratory of the common
law, it adds nothing.
98. I also mentioned statutory public order
law: the Public Order Act 1936 in England and Wales, giving way
to the Public Order Act 1986; and, in Northern Ireland, the nineteenth-century
party processions acts, the special powers acts of the former
Stormont government, and finally, the PONIO 1987 and the PPNIA
1998.
99. Statute law trumps common law. However,
Sedley LJ stated obiter, in Redmond-Bate v DPP, unreported,
23 July 1999, that the common law, in England and Wales, was in
conformity with the ECHR. This might also apply to Northern Ireland.
And it means, if followed in Northern Ireland courts, that the
PONIO 1987 and the PPNIA 1998 must be interpreted in terms of
Convention rights. In other words, one could have anticipated
the HRA 1998 being brought into force by arguing: where the common
law is uncertain, unclear or incomplete, courts would seek to
apply it consistently with the ECHR: Derbyshire County Council
v Times Newspapers Ltd [1992] QB 770, 812 per Balcombe LJ,
822 per Ralph Gibson LJ, 830 per Butler-Sloss LJ; Rantzen v
Mirror Group Newspapers (1986) Ltd [1994] QB 670, 691 per
Neill LJ for CA. It would then be a case of interpreting statute
law in the light of the common law, including Convention rights.
Human Rights Act 1998
100. This is discussed in a separate section
below.
European Convention on Human Rights
101. This is also discussed, immediately
below. Here, I make the point that, even after the HRA 1998 came
into force, it is still possible to argue the Convention as an
international agreement having partial effect in domestic law.[112]
The Strasbourg court, moreover, will still be open to anyone with
a human rights case; admissibility depending upon article 35.
The human rights remain—even after so-called incorporation—rights
of individuals in international law.
102. This is also the position with regard
to the 1966 international covenant on civil and political rights,
which entered into force—in international law only—in
1976. Article 21 is in very similar terms to article 11 of the
ECHR: "The right of peaceful assembly shall be recognised.
No restrictions may be placed on the exercise of this right other
than those imposed in conformity with the law and which are necessary
in a democratic society in the interests of national security
or public safety, public order (ordre public), the protection
of public health or morals or the protection of the rights and
freedoms of others.[113]
EUROPEAN CONVENTION
ON HUMAN
RIGHTS (1953, CMD
8969)
103. This treaty was signed at Rome in 1950.
It was, and remains, a major aspect of the work of the Council
of Europe. It has nothing to do with the European Union, though
attempts are being made to create relations.[114]
The United Kingdom was the first state to ratify the Convention
on 8 March 1951. It entered into force on 23 September 1953.
104. However, the right of individual petition
(at the behest of the United Kingdom) was made voluntary as between
member states. The European Court of Human Rights ("ECtHR)
was given no jurisdiction in such cases (individual against state),
where the state did not wish it. At the end of 1965 (following
legislation to overturn a war damages case), Harold Wilson, without
referring the issue to the cabinet, relented. The United Kingdom
allowed individual petitions to Strasbourg from 1966, and accepted
the compulsory jurisdiction of the ECtHR for, initially, a three-year
period, later made permanent.
105. A major change to the control machinery
of the ECHR, and some changes in the text, were made by protocol
no 11, signed on 11 May 1994, and entering into force on 1 November
1998.
106. The ECHR remains an international agreement,
not justiciable in domestic, United Kingdom, law: JH Rayner
(Mincing Lane) Ltd v DTI [1990] 2 AC 418, 500 per Lord Oliver
of Aylmerton. The reason has to do with Parliamentary sovereignty,
and with the prohibition on the executive legislating effectively
on the international plane.
107. However, against the background of
major changes in United Kingdom, and international human rights,
law, in the 1970s and 1980s, elements of the senior judiciary
began to allow it to be used interpretatively in England and Wales,
in selective circumstances in the 1990s:
— one, where the common law is uncertain,
unclear or incomplete, the courts are to apply it, and exercise
judicial discretions, consistently with the Convention: Derbyshire
County Council v Times Newspapers Ltd [1992] QB 770, 812 per
Balcombe LJ, 822 per Ralph Gibson LJ, 830 per Butler-Sloss LJ:
Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB
670, 691 per Neill LJ for CA;
— two, where statute law is ambiguous,
the courts are to seek to interpret it consistently with the Convention:
R v Secretary of State for the Home Dept, ex parte Brind [1991]
AC 696, 747-8 per Lord Bridge (plus Lord Roskill), 670 per Lord
Ackner (plus Lord Lowry);
— three, in judicial review cases,
where a public authority interferes with human rights, the courts
will require justification to bring the decision within the range
of reasonable responses: R v Ministry of Defence, ex parte Smith
[1996] QB 517, 554 per Sir Thomas Bingham for CA;
— four, where European Union law is
directly effective, the courts will take account of the ECHR,
cited in article 6.2 (ex article F.2) TEU of the 1997 Amsterdam
treaty.[115]
108. Such devices remain in theory, even
after the ECHR was incorporated in domestic law, if it should
ever prove necessary to argue international human rights law points
in United Kingdom courts.
109. Turning to the question of parades
in Northern Ireland, the following Convention rights (as they
have been called from 2 October 2000) are relevant:
ARTICLE 9
Freedom of Thought, Conscience and Religion
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 and 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 limitation 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.
ARTICLE 10
Freedom of Expression
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 Article shall not
prevent States from requiring the licensing of broadcasting, television
or cinema enterprises.
The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
ARTICLE 11
Freedom of Assembly and Association
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.
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. This Article shall not prevent
the imposition of the lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State.
110. Articles 9, 10 and 11 have been presented
together because "the[ir] values . . . are at the foundations
of democratic society . . . The protection of personal opinion
afforded by arts 9 and 10 in the shape of freedom of thought,
conscience and religion is one of the purposes of the freedom
of association expressly guaranteed by art 11."[116]
The Strasbourg court has tended to apply the articles in a manner
most appropriate to the facts of each individual application;
an article 11 case may be essentially an article 9 one: see, for
example, Young, James and Webster v United Kingdom (1981)
4 EHRR 38, ECtHR, para 52.
111. There is also one other article of
considerable relevance to the circumstances of Northern Ireland,
where there are processions and related protest meetings:
ARTICLE 17
Prohibition of Abuse of Rights
Nothing in this convention may be interpreted
as implying for any State, group or person any right to engage
in any activity of perform any act aimed at the destruction of
any of the rights and freedoms set forth herein or at their limitation
to a greater extent than is provided for in the Convention.
This applies—from the point of view of
the loyal orders—to attempts by residents groups to stop
or interrupt processions, either by the threat or the use of violence,
or by attempts to use the Parades Commission, either through notifying
counter demonstrations, or lobbying, to impose rerouteing conditions
in determinations.
112. I will now consider the elements of
articles 11 and 17, both the human right/fundamental freedom,
plus limitations, in the case of the former, and in the case of
the latter, its status in litigation before the Strasbourg court.
Articles 9 and 10 are not similarly analysed, though some of the
points on article 11 are relevant. (Note needs to be taken of
the freedom, in article 9, "either alone or in community
with others and in public or private, to manifest [one's] religion
or belief."). I consider only the assembly right in article
11; not the second right, namely freedom of association. Nor do
I consider the final limitation for, essentially, state employees.
Article 11: "1. Everyone has the right
to freedom of peaceful assembly . . ."
113. "Everyone" means everyone,
including the loyal orders in Northern Ireland. There is no basis
for denying the right simply on the grounds of perceived sectarianism,
triumphalism or supremacism, reasons customarily given by nationalists
and others. When they do so, they invoke a repressive tradition
in United Kingdom law and politics—banning—(which
may be contrary to human rights), and has been used inter alia
in a public order context in Great Britain, to deal with racist
and other organisations: Public Order Act 1986 part III; these
powers, however, do not extend to processions and meetings.
114. "The right to freedom of peaceful
assembly": "The right to peaceful assembly is recognised
as a right fundamental to a democratic society, and is not to
be restrictively interpreted."[117]
Application 13079/87 G v Federal Republic of Germany 60 DR
256, 263 (1989) EcomHR. "Peaceful" is important; the
right does not extend to where organisers and participants have
violent intentions which result in public disorder: Application
13079/87 G v Federal Republic of Germany 60 DR 256, 263
(1989) EcomHR. However, Strasbourg jurisprudence does not penalize
marchers if the violence, or threat thereof, comes from protesters
(see further below).
115. The right—according to Pushpinder
Saini (paraphrased below), as edited by Lord Lester of Herne Hill
and David Pannick—covers not only static meetings or assemblies,
but also public processions or marches: Christians against
Racism and Fascism v United Kingdom Application 8440/78 21
DR 138, 148 (1980) EcomHR. The right includes both the right to
hold private meetings, and meetings in public: Application 8191/78
Rassamblement Jarrasien Unité v Switzerland 17 DR
93, 119 (1979) EcomHR. Subjecting peaceful demonstrations to a
prior authorisation procedure does not, however, encroach upon
the essence of the right: Application 8191/78 Rassamblement
Jarrasien Unité v Switzerland 17 DR 93, 119 (1979) EcomHR.
116. "Following the decision of the
ECtHR in Plattform "Artze fur da Leben" v Austria
[A 139 (1988) 13 EHRR 204, ECtHR], it is clear that, in addition
to the state not taking steps unjustifiably to restrict the freedom
of peaceful assembly, it is under a positive duty in the sphere
of relations between private individuals to take reasonable and
appropriate measures to enable lawful demonstrations to take place,
without the participants being subjected to physical violence
or other threats. In this case, the applicants complained of a
lack of protection from the police against the counter-demonstrators.
The court considered that in a democracy the right to counter-demonstrate
could not extend to inhibiting the exercise of the right to demonstrate
. . .".[118]
"2. No restrictions shall be placed on
the exercise of [this] right[s] . . ."
117. This is an important beginning to article
11(2), to the limitation paragraph of the right to freedom of
peaceful assembly. Most of the Convention rights are similarly
qualified: article 3 (prohibition of torture) is the only strictly
absolute right. Articles 8 to 11 have similar limitations. However,
that in article 11 compares with article 8, suggesting the limitations
have to be interpreted restrictively—which is the general
rule for articles 8 to 11 limitations: Sunday Times v United Kingdom
(1979) 2 EHRR 245, 281, ECtHR.
" . . . other than such as are prescribed
by law . . .".
118. This is a reference to common law or
statute. But it does not mean simply that the state must obey
the rule of law (it could, after all, enact oppressive legislation).
There must be "a measure of legal protection in domestic
law against arbitrary interference by public authorities with
the rights safeguarded.": Malone v United Kingdom (1984)
7 EHHR 245, 270, ECtHR.
" . . . and are necessary in a democratic
society . . .".
119. "necessary in a democratic society"
is added to "prescribed by law" as the basis of any
restrictions to freedom of peaceful assembly. The ECtHR has defined
"necessary" as implying the existence of a "pressing
social need": Sunday Times v United Kingdom (1979)
2 EHHR 245, 275. The court must assess whether the interference
by the state was:
— a pressing social need;
— was proportionate to the legitimate
purpose pursued;
— and based on reasons which are relevant
and sufficient (277-8).
" . . . in the interests of national security
or public safety, . . .".
120. This is the first permitted purpose.
National security is undoubtedly paramount.
121. There is, however, a major problem
in looking at ECtHR cases (and this point applies to all four
purposes). Strasbourg deploys the concept of "margin of appreciation",
meaning that the member state—and not the court—is
the better judge of the reasons for limiting a right in a particular
context. This means that Strasbourg jurisprudence, which will
be considered in domestic United Kingdom law, contains as it were
"black holes". Domestic courts will have to fill in
the reasoning not supplied by Strasbourg (this point is distinct
from the argument that, just as Strasbourg defers to member states,
so national courts may accept that the legislature or the executive
is a better judge of some limitations on rights—a sort of
domestic margin of appreciation, but one that cannot be inferred
from Strasbourg case law.)[119]
" . . . for the prevention of disorder or
crime . . ."
122. This is the main purpose given by member
states for imposing limitations on freedom of peaceful assembly.
" . . . for the protection of health or morals
. . ."
123. This is rarely used by responding states
defending themselves against individuals at Strasbourg.
" . . . or for the protection of the rights
and freedoms of others."
124. This is the last of four permitted
purposes. The structure of article 11 does not allow for the interpretation:
A has freedom of peaceful assembly; and B, if he objects for any
reason, can cite his "rights and freedoms". He would,
of course, have to specify what those are. And the structure of
the article does not permit a simple balancing or cancelling out;
the right, is to be interpreted broadly: the limitation narrowly.
125. "The rights and freedoms of others"
is circumscribed by article 18: "The restrictions permitted
under this Convention to the said rights and freedoms shall not
be applied for any purpose other than those for which they have
been prescribed." And potential protesters are further limited
by article 17.
Article 17 "(Prohibition of Abuse of Rights)"
126. This article does not only bind a state,
but also refers to "any . . . group or person". The
term "abuse" in the title, inserted by protocol no 11,
is to be distinguished from "violation" in article 34
("Individual applications"). The Strasbourg court deals
with violations by states. But it also examines—from the
victim's point of view—abuses of human rights. There is
an indirect horizontal effect in Strasbourg jurisprudence (whereby
the state does not just answer to individuals alleging violations
by it; it may have a positive duty to intervene to protect them):
eg the right to life in Northern Ireland was abused by republican
and loyalist terrorists: however, the state—by not preventing
terrorism was responsible for the violation of article 2, even
though it did not kill most of the victims of the troubles.
127. Article 17 prevents any group or person
invoking human rights, namely the ECHR, for any activity aimed
"at the destruction of any of the rights and freedoms set
forth herein", such as article 11.
128. It has been used against Dutch racists,
who sought to complain about criminal convictions for distributing
pamphlets, and not being allowed to stand in municipal elections:
Application 8348/878 & 8406/78 Glimmerveen and Hagenbeek
v the Netherlands (1979) 18 DR 187, EcomHR: "The general
purpose of Article 17 is to prevent totalitarian groups from exploiting
in their own interests the principles enunciated by the Convention.
To achieve that purpose, it is not necessary to take away every
one of the rights and freedoms guaranteed from persons found to
be engaged in activities aimed at the destruction of any of those
rights and freedoms. Article 17 covers essentially those rights
which, if invoked, will facilitate the attempt to derive therefrom
a right to engage personally in activities aimed at the destruction
of any of the rights and freedoms set forth in the Convention"
(195). The Commission cited as authority for not taking away all
rights, especially articles 5 and 6: Lawless v Ireland (1961)
1 EHRR 15 ECtHR—the first case at Strasbourg, brought by
an Irish republican interned by the Republic of Ireland during
the 1950s' campaign; Lawless, of course, had not sought to use
the Convention to destroy the rights and freedoms of others.
99 5th ed, London 1897. "The right of assembling
is nothing more than a result of the view taken by the Courts
as to individual liberty of person and individual liberty of speech
. . . Here . . . you have in substance that right of public meeting
for political and other purposes which is constantly treated in
foreign countries as a special privilege, to be exercised only
subject to careful restrictions." (260-1) In Note V, he stated
that: "English law does not recognise any special right of
public meeting either for a political or for any other purpose."
(431) See also, Public Meeting Act 1908. Back
100
Quoted in Robert Blackburn, ed, Towards a Constitutional Bill
of Rights for the United Kingdom, London 1999, p 124. Back
101
96 This is not strictly an offence; reasonable apprehension of
a breach of the peace is important in the law of arrest and for
the purpose of binding over: R v Howell [1982] QB 416 per
Watkins LJ (defining breach of the peace in a modern context). Back
102
Cf Scots law, where there is an offence of breach of the peace:
Deakin v Milne (1882) 10 R(J) 22 (here Salvationists were
convicted). Back
103
This case was endorsed by Dicey, The Law of the Constitution,
5th ed, London 1897, pp 262-5. However, he made reference
to some "Irish cases" which apparently took a different
view. Relevant Irish cases dealing with land agitation are: R
v M'Naughton 14 Cox CC 676; R v Justices of Co Cork
15 Cox CC 78 (defendant imprisoned for refusing to give bail,
having incited a tenant at an eviction to pay no rent); R v
Justices of Cork 15 Cox CC 149 (defendant Catholic priest
summoned to find securities for good behaviour, having advised
parishioner tenants not to pay rent); O'Kelly v Harvey (1882)
14 LR Ir 105 (judgment 19 February 1883 by Law C, distinguishing
Beatty v Gillbanks [111-2], involving JP defendant in Brookeborough
, Co Fermanagh, accused of assault and battery, using minimum
force to disperse a meeting, presumed not to be an unlawful assembly,
but where an Orange counter-demonstration was expected, reasonably
believing there would otherwise be a breach of the peace). Back
104
O'Brien J: "the remark attributed to the Catholics, that
they would not be allowed to act in the same way-on which alone
the fear of the breach of the peace was based-was not an expression
of hostility at all that would cause a fear of collison, but was
in reality a complaint that in Londonderry, sometimes, the law
fluctuated according to circumstances." (449) Cf also Holmes
J (460). Back
105
F E Smith, for the appellant, argued Londonderry Justices (the
no evidence point) and Beatty, and cited Dicey as to why the Irish
cases, Londonderry Justices and O'Kelly, conflicted
with Beatty. Dicey had, in fact, anticipated such a case
("an extreme exercise of the right of public meeting which
would probably not be tolerated in any other European country"),
and predicted-incorrectly-that the defendant would be acquitted
on the basis of Beatty (but not the Irish cases): Law
of the Constitution, 5th ed, London 1897 pp 265-6. Back
106
Darling J distinguished Beatty on the facts, but stated
that, if it conflicted with Londonderry Justices, he preferred
the latter (179). Back
107
Lord Irvine of Lairg LC, Lord Clyde and Lord Hutton and Lord
Slynn of Hadley and Lord Hope of Craighead. Back
108
Lord Hutton, in defining a common law right of public assembly,
adopted a passage on freedom of expression from Lamer CJC, in
Committee for the Commonwealth of Canada v Canada (1991)
77 DLR (4th) 385, 394 (political demonstrators in the public terminal
concourse of Montreal airport secured a declaration that the airport
management had not observed their fundamental freedoms). Back
109
Lord Hutton referred to a right of public assembly. Back
110
Plaintiff used public highway to disrupt grouse-shooting on defendant's
land: held by Lord Esher MR, not a reasonable use of the highway. Back
111
Racing tout used public highway to observe horses in training;
the court followed Lord Esher MR in Harrison's case in
holding that this was unreasonable. Back
112
Lord Lester of Herne Hill & David Pannick, eds, Human
Rights Law and Practice, London 1999, para 2.1.3. Back
113
Therese Murphy, "Freedom of Assembly", in David Harris
& Sarah Joseph, eds, The International Covenant on Civil
and Political Rights and United Kingdom Law, Oxford 1995,
pp 439-64. Back
114
House of Lords, Select Committee on the European Union, EU
Charter of Fundamental Rights, with evidence, HL Paper 67,
ordered to be printed 16 May 2000. Back
115
Lord Bingham of Cornhill, in his maiden speech in the House of
Lords on 3 July 1966, outlined two further respects (he did not
mention Smith though judgment had been given on 3 November
1995): interpreting a statute designed to implement an ECHR obligation,
where there is a presumption of effectiveness, and public policy,
where international obligations are taken as a source of guidance.
On the European point, he mentioned Community law, and the law
common to the member states. (House of Lords, Hansard, 5th
series, col 1466, 3 July 1996). Back
116
Lord Lester of Herne Hill & David Pannick, eds, Human
Rights Law and Practice, London 1999, para 4.9.1. Back
117
Lord Lester of Herne Hill & David Pannick, eds, Human
Rights Law and Practice, London 1999, para 4.11.1. Back
118
Lord Lester of Herne Hill & David Pannick, eds, Human
Rights Law and Practice, London 1999, para 4.11.2. Back
119
See R v DPP, ex parte Kebilene [1999] 3 WLR 972, 993-4
per Lord Hope of Craighead. Back
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