The Human Rights Act 1998

Article10 reads;

1. Everyone has the right to freedom of expression.

…include freedom to hold opinion…to receive and impart information and ideas without interference by public authority...

2. … these freedoms…carries with it duties and responsibilities….prescribed by law…necessary in a democratic society in interests of…public safety for prevention of disorder or crime…

Article 10 allows interference, but it must be justified, criteria is set out to assess the validity of the justification that is made. If their is an interference with the applicants right then the court looks to article10-2 to see if the interference is legitimately justified.

The European Court of Human Rights asks itself three questions to determine whether the interference is justified;

1. If interference was prescribed by law?
2. Does interference have a legitimate aim?
3. Is it necessary in a democratic society?

Applying the three elements, I would say there is an interference with Everett’s freedom of expression because his right to receive and impart information and ideas without interferences by public authorities is violated by Amble Council not letting him congregate and share his information and knowledge with other Thorskinds.

The interference is prescribed by law because Amble Council were applying municipal law which makes their actions lawful. There must be a good foundation to justify the interference; Amble Council didn’t want a repeat of what happened at Stonehenge to happen on the Northumbria coast.

Amble Council took everyone’s rights into account, they didn’t want disorder, violence hampering the festival for Thorskinds, or to cause any upset to the local residents. To reassure the locals they made the order clear to everyone in a press release after the consent of Tessa Jowell in late 2002. Everyone is told in advance and has the opportunity to check the extent of the order.

The order is taken to restrict the purposes in the art10-2. There is a legitimate aim by Amble Council, to prevent disorder and crime, protect public safety and also religious feelings.

In the case of Otto-Preminger-Institut, Austria1994

The applicants film about Christianity was seized and forfeited because it offended religious feelings. The Austrian Government said that seizing the film was;

 ‘aimed at the protection of…rights of others, right to respect for ones religious feelings, and…prevention of disorder’ 

Applying the case I would say Amble Councils intentions were similar. The interference was necessary in a democratic society because it was needed to ensure public safety, protection of the monument and no disorder. The Judge also said;

‘freedom of expression constitutes an essential foundations of a democratic society, one of the basic conditions for its progress  and for development of everyone’            

In a democratic society, it isn’t possible to class which religion is democratic and which isn’t because within every country every religion is different and in every country there are different religions.

Under the Doctrine of Proportionality ‘balances nature and extent of interference against the reason for the interference’ the POA and AMA’s nature was to ban the festival for public safety and to protect the Monument. I don’t think it would be possible for Amble Council to achieve the same aim in a way which is less intrusive. Amble Council have a ‘margin of appreciation’ because they know the area and are in a better position than Judges to decide what is necessary on the Northumbria Coast.

Considering the three elements there was no violation of article10 because Amble Councils actions are prescribed by law, legitimate and necessary in a democratic society.

The other main article, article11 reads;

‘Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and…association…
2. No restrictions shall be placed on the exercise…rights…such as are prescribed by law and necessary in a democratic society…in the interests of…public safety, for prevention of disorder or crime…’

Freedom of assembly is a recognised fundamental right of a democratic society. It involves the right to hold meetings in public and private.

Freedom of association means a voluntary grouping of people for a common goal. Local Authorities imposing sanctions to control peaceful assemblies have been held not to violate the right.

In the case Arthur Pendragon, UK1998. The applicant was a Druid who wanted to hold a religious festival known as Summer Solstice in 1995, but was prohibited by the local Council under section14A POA. He alleged violation of articles11 and 14. It was held that there was no violation because;

‘It can be…regarded as necessary in a democratic society…for prevention of disorder’

Applying the Arthur case I would say there has been a violation of article11. Before publishing the order Amble Council needed agreement from Secretary of State, English Heritage and Police to arrange security. I  think the interference is justified and necessary in a democratic society, because Amble Council didn’t want a repeat of Stonehenge in1988.

Under articles10 and11 Everett would fail, then he could try article14-Prohibitation of Discrimination;

‘…rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion...’

Everett could argue not being allowed to celebrate Thorsfest, which happens every 14years was discriminating against his religion.

Again I think Everett would fail because as in Arthur case, it was held, he made no attempt to find a alternative location and neither has Everett, while Amble Council did attempt to. Also the order is not disproportionate to Thorskinds. It prohibits access for everyone, not just Thorskinds. Amble Council attempted to be fair and reasonable and were not discriminating against Thorskinds.

After article10,11,14, Everett could then try article9-Freedom of religion, which reads;

1. ‘Everyone has… right to freedom of thought, conscience and religion…
2. …shall be subject…limitations as are prescribed by law…’

Amble Council haven’t violated the right, they showed respect for Everett’s

Religious beliefs

‘religious tolerance implies respect for religious beliefs of others’

Amble Council didn’t want to ruin Thorsfest, but the limitations were prescribed by law under AMA and Race Relations Act1976,and amendment2000 section19B(3)(a). Amble Council are excluded from section19B(1), they are applying municipal law which is made in Parliament, they are connected with proceedings in Parliament.

 

As well the European Convention on Human Rights Everett could also use sections3, 6and 7of the HRA

Under section6HRA Amble Council are acting lawfully, they are merely applying primary legislation, and aren’t violating the conventions. Section6 reads;

‘6.-(1)…unlawful for a public authority to act in a way incompatible with a convention right.

    (2) does not apply to act if-

(a) as the result of…primary legislation…authority could not have acted differently’

   (3)…(b)any person certain of whose functions are functions of a public

        nature…’

Amble Council do fit into the description of a public authority, they carry-out public functions under s6(3)(b). Under section6(1) and (2)(a) they can provide they aren’t acting incompatibly.

Amble Council would prevail under section6, but they must have attempted to interpret municipal law compatibly under HRAsection3 which reads;

‘3-(1)… primary legislation...must be read and given effect in a way which is compatible with the conventions…

   (2)(a)applies to primary legislation…whenever enacted…’

Primary legislation must be interpreted so it is compatible with the conventions, but if validity of primary legislation is not compatible, whenever it was enacted before or after 2ndOctober2000 primary legislation will not be affected.

Any primary legislation which is incompatible must be interpreted so it isn’t.

The primary legislation could not have been interpreted in a way to make it compatible, section3(2), so Amble Councils action under AMA and POA should not be incompatible.

However it is impossible, Amble Councils main concerns to protect their residents and the Castle could have been interpreted compatibly, the duty is imposed upon them by Parliament.

Everett could then also argue he has been a ‘victim’ under section7 HRA which reads;

‘7(1)a person who claims that a public authority has acted…unlawful…may-

(b)rely on the convention rights…only if he is or would be a victim of the unlawful act ’

To be a victim he must have suffered or been under threat because of the violation. Everett isn’t a victim. He hasn’t suffered, he knew a year before Thorsfest he would be prohibited access. He had a reasonable amount of time to find an alternative location.

If the actions of a local authority instigated legal proceedings the victim can rely on section7(1)(b), whenever the unlawful act took place even if it happened before the HRA come into force, otherwise it doesn’t apply to unlawful acts before the HRA come into force (Section7(1)(b)and 22(4) )

If the order had been published when Everett first identified the location in 1998 he would still have been able to rely on the conventions because action was instigated by Amble Council.

As the HRA is only two-years old there isn’t a lot of case-law to take into consideration. The cases that have been used are pre-HRA, so the court may think differently if a similar situation occurred post-HRA.

Everett has time to challenge the order in court before it comes into force on 7th May2003,the location was identified in 1998, and order not published until late 2002. Interference was prescribed by law, Amble Council were only trying to act in a preventative nature to stop disorder.

Everett wouldn’t be successful in challenging the order using HRA. Amble Council are within their powers to stop Thorsfest, they are under a duty to protect the Castle and surrounding area. They did truly want to find a resolution but because there is no alternative location to host Thorsfest without concerns of disorder, public safety and harm to the Castle, Amble Council had no other option but to stop Thorsfest.

A similar decision was given in Chappell, U.K1987, where the Druids Summer Solstice was banned for similar reasons.

Currently there is some debate about restricting access to Alnswick Castle in Northumberland because of the amount of people it is attracting due to the film Harry Potter being filmed there. The Council are worried about damage caused to the Monument which has been there since 11thCentury.

Lots of magic festivals and other gatherings are currently held there, so under the HRA maybe restricting access will be seen to a violation post-HRA.

Applying all the relevant case-law above. The decision is reached that Everett’s case would be ADMISSIBLE. 

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