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Topic 16- Freedom of Association and Assembly (Association Article 40.6.1…
Topic 16- Freedom of Association and Assembly
Association
Article 40.6.1 (iii)
The state guarantees liberty for he exercise of the following rights, subject to public order and morality
(iii) The right of citizens to form associations and unions
Laws however, may be enacted for the regulation and control in eh public interest of the exercise of the foregoing right
Positive and Negative
Prevents state restriction on formation of organisations/unions
Prevents state from compelling membership (freedom of dissassociation)
OATS Act 1939
s19(1) Suppression Order can be made against 'illegal' organisation
National Union of Railywaymen v Sullivan
Facts: Part 3 of Trade Union Act 1941- allowed for Trade Union Tribunal to determine a partiuclar trade union could have exclusive rights to represent workers in a particular industry
Issue: P argued that this breached their right to freedom of association as it forced them to choose the Union as chosen under the Act, rather than one of their choice
Held: SC- The Act eliminated power of association rather han merely restrictly it
lack of choice amounted to a denial of right and not merely 'regulation' of it
'Each citizen is free to associate with others of his choice for any object agreed upon him and them'
Freedom Not to Associate
EDCO v Fitzpatrick:
Facts: Group of workers withdrew their labour and engaged in picketing after P employer refused to compel its employees to join a particular trade union
Issue: P sought injunction to restrain the picketing
Despite the fact that the action amounted to a trade dispute pursuant to Trade Disputes Act 1906,
SC HELD: that because constitutional right to freedom of disassociation was involved as well as right to freedom of association, the picketing could not be regarded as lawful as it was aimed
at coercing persons to joining against their wishes
I myself would construe the words of the Article as meaning by implication ha a citien has the correlative right not to form or join associations or unions if he does not wish to do so
Meskell v CIE
:
Facts: Respondent, under union pressure, terminated all employee contracts and the new contracts prescribed compulsory union membership
Issuel: P= bus conductor of 15 years who did not join union on re-employement
Dismissed
Held; Successfully cahllenged the dismissal
Awarded damages for breach of his constitutional rights
SC affirmed the principle that freedom of association included a right to abstain from joining
Monopolies in Particular Industries
Murphy v Stewart
: P sought to join Irish Transport and General Workers Union
Refused him admin on basis that his exising union (respondent) would not consent to him leave
Issue; P sued respondent union for violating his right to association
Held; SC- Respondent had not breached his rights
real problem was with 2nd union requiring consent of respondent union
NOTED: Union which has monopoly might be compelled to accept membership
O'Connell v Building and Allied Trades Union
:
Facts: P was brick-layer working in Limerick
Rules of union included that only block-layers in direct employment were eligible for union membership
BATU would only employ members of union
P worked as employee and subcontractor on some jobs
Held: Union breached his right to earn livelihood
Held (CA): Union enjoyed an effective monopoly in Limerick and P's right to earn livelihood breached
Horizontal effect of right to earn livelihood
Union's right to refuse members limited where union has a monopoly on employment in a particular area
Subject to the Public Interest
PMPS and Moore v AG:
Facts: P was co which operated a banking business as an Industrial and Provident Society
Second P was shareholder in co
Act passed which removed right of such Industrial and provident society from holding deposits
Issue: Argued this amounted to breach of freedom of association on basis it interfered with freedom to associate with others for business purposes
Held: Court rejected this argument
Law did no more than regulate in the public interest
Norris v AG
: Argued an on his freedom to association
Held: justified by common good
Aughey v Ireland
:
Facts: P Garda detectives claimed entitlement to separate union as 'detective' is a separate rank
Commissioners denied access under s13 of Garda Siochana Act which provided power to determine whether a representative body may be formed
Issue: Challenged constitutionality of the Act
Held: SC upheld constitutionality of the Ac
Found restriction on number of representative bodies within the force was captured by public interest exception
Public interest: in Commissioner not having to deal wih numerous different union bodies
Multi-union action by Gardai would be mater of 'grave public concern'
Appropriate 'regulation and control' of their rights to freedom of association
Rekvenyi v Hungary
The court upheld ban on police officers being members of political parties
Freedom of Assembly
Article 40.6.1 (ii)
The State guarantees liberty for the exercise of the following rights, subject to public order and morality
(ii) The right of citizens to assemble
peaceably
and without arms
Provision may be made by law to prevent or control meetings which
Are calculated to cause a breach of the peace
Are a danger or nuisance to the general public
Are in the vicinity of either House of the Oireachtas
Legislation required to limit peaceful assembly for those reasons
Very little case law
Scope of freedom of assmbly unclear
Forde and Leonard: Apart from cases dealing with one kind of freedom of assembly, picketing in the context of a trade dispute, authority on the meaning of constitutional freedom of assembly also is sparse
It has not been established e.g. whether guarantee applies to
: Forms of economic assembly
: or to sporting and social assembly
: or whether it is confined to meetings and demonstrations with essentially political objectives
Hyland v Dundalk Racing Limited
:
Facts: Protest outside Dundalk Stadium on public road
Largely peacful, with exception of isolated incidents of abusive language directed at particular individuals
Held: Protest was prima facie entitled to protection under the Constitution
Observations on freedom of assembly
Nuisance: refers to activities which make it difficult or impossible for the general public to use their own amenities
e.g. blocking access to private dwelling/ holding late night protests in purely residential area
The assembly must not involve acts of trespass
It should not involve abusive language
The right to protest is not lost simply because of a few regrettable lapses on part of an 'undisciplined minority'
Held: the protest protected by freedom of assembly
DPP v Bennett
Facts: D charged with an offence contrary to s9 Criminal Justice (Public Order) Act 1994- interruption of free passage of a vehicle in a public place
In context of political protes outside the Israeli Embassy the applicant engaged in short sit-down protest during which ambassador's car obstructed
Lasted for 20 seconds until Gardaí removed him
Held: District Court: Applicant had been peaceful at all times
District Court convicted applicant
Appealed to HC: Wheher the defence of reasonable excuse as provided for in Act could be relied on by D
Held; It did not
Noted there may be cases where a protest could amount to reasonable excuse
On these facts it did not
Noted- had to be removed by Gardai/ Embassador had been delayed
ECHR Case Law on Freedom of Assembly
Platform Arzte fur das Leben v Austria
Facts: Anti abortion lobby group had organised 2 demonstrations
On each occasions counter-protests also held
Issue; Whether police service had taken effective steps to protect the protestors from counter-protest
Held: Police had taken effective measures and hence Austria had not violated the right to assembly
Court made several observations re freedom of assembly
In as much as freedom of expression extends to ideas which shock, disturb or offence, a demonstration may annoy or give offence to other persons
Freedom of assembly protects such
Appears to be positive obligation on the state to ensure persons exercising their right to freedom of assembly are not subjected to physical violence by other persons
Backowski v Poland
: Poland had withdrawn permissions for a gay rights parade to take place in Warsaw
European Court held A 11 breached
Held freedom of assembly and association of particular importance for minorities due to increased risk of victimization