Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence

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]


  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:


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.


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.


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:


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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