Paul McHolland's Community Law Page www.gerardkeegan.co.uk is delighted to welcome Paul McHolland and his Community Law Page. Paul will write about topics of interest with a legal twist. Paul encourages feedback on his articles, and is also happy to help readers with any legal matters they may have. E-mail Paul at PmcHolland@RossHaper.com. By Way Of Introduction Paul is a solicitor with Ross Harper, one of Scotland's largest law firms. He specialises in civil litigation, which encompasses family, employment, personal injury, medical negligence and general civil law. He is married, has two young boys Matthew and Lewis and lives in Kilmarnock. In his spare time he supports the same football team as Gerry, and is chuffed to nuts when someone asks, 'Were you not in a band called The Longhorns?' Click to read his latest article 'A Tradition; At Worst, Divisive' Click to read his first article 'On Smoking In Public Places' Click to find out Paul's 3 most Frequently Asked Questions!
A Tradition; At Worst, Divisive For anyone who is interested in psychology there are a host of books which they may chose to read. Some may be fairly academic, some may be fairly wide-ranging and more popular. Plus of course there is the seminal text by Gerard Keegan called 'Approaches & Methods' which is without equal! A psychology book that is certainly not on the bestsellers list but is extremely interesting is "Awareness" by Anthony DeMello. Whilst the book may touch on many of the issues which you would expect to be explored in a psychology book it is certainly different from the norm. It is full of very interesting stories and anecdotes. Many of the chapters run only for one page and there are numerous amount of themes within it. Many of the stories which are told within the book are both humorous and illuminating. One in particular stands out. The story tells the tale of a young man walking down the street late one night on a Saturday evening in Northern Ireland. From behind him he hears a noise and feels some cold steel on the back of his neck and is then asked the question, "Are you Catholic or Protestant?" He then replies, "I am Jewish!" The assailant then responds, "My God, I must be the luckiest Arab in Belfast!" Whilst issues of sectarianism are more rife in Northern Ireland, they also exist in Scotland today. The recent chair of Kilmarnock Football Club and former Chief Constable of Strathclyde Police, Sir John Orr, has been appointed by the Scottish Executive to investigate public processions in Scotland. The only two areas in which this causes controversy are Orange walks and Republican walks. Numerous Orange walks take place in Scotland throughout June and July, and to a lesser extent there are Republican walks as well. The purpose of the Orr investigation is to assess whether these types of processions have any relevance in modern day Scotland and whether the law should intervene to end them. Currently the Civic Government (Scotland) Act 1982 and the Public Order Act 1986 exist to control public meetings and processions in Scotland. When they were introduced they granted new powers imposing directions on assemblies and on public processions taking place. They imposed directions and conditions relating to the venue of an assembly or its maximum attendance and duration. A public assembly is defined as more than twenty persons gathered in a public place. Public places are such areas as football grounds, open air rock concerts, and political rallies. Organisers of a public procession (which here means i.e. a sectarian march) must give at least seven days' written notice of its route, date, time, numbers of participants, details of the stewarding and the name and address of the organisers. The Chief Constable for the area can then consent or withdraw support for it to take place if they believe that it could constitute public disorder. The test they apply to do so is known as "disruption to the life of the community". There is also a further test known as the "intimidation test". The intimidation is designed to regulate the type of protest which seeks to use fear rather than reason to persuade. So, for example, taken at its most basic form, a Protestant sectarian march or procession, for example, going through a Catholic neighbourhood or passing a Catholic Church could not be banned on the ground of intimidatory purpose alone. The qualification affirms that the law here is concerned with immediate threats to public order and not with the speculative long-term harm to state interests such as that of harmonising community relations. In Scotland, whilst there have never been such marches on the scale seen in Northern Ireland they do still take place. Many people who oppose these marches believe that they are old-fashioned, archaic and have no relevance in a modern day Scotland. Some have gone as far as to say that they are an affront to the political and cultural life of Scotland. The opposing view is that it is an individual's right to march the highway and that such marches and processions are part of a cultural tradition which has existed for hundreds of years, and consequently there is no legal basis for refusing them. An interesting insight into the nature of these marches and the motivation behind them can be found in "The Faithful Tribe". This was written by Ruth Edwards who is a Catholic academic but spent many days with Orangemen in Northern Ireland to research into their marches and why they felt so strongly about continuing with them. Your viewpoint and whether you believe they should remain is likely to be dictated by notions of individual freedom and personal choice and the right of an individual. Equally, with the opening of a new Parliament and with Scotland hoping to brand itself as a modern, vibrant, mature country it is perhaps time that the area is fully examined and the issue addressed on a dispassionate basis. It was John Hume who worked tirelessly to promote peace in Northern Ireland who, quoting from Martin Luther King made the observation: "An eye for an eye leaves everyone blind". It is hoped that the Executive will be innovative and legislate to bring Scotland into a modern era. The processions Orange or Green are at best, a tradition; at worst, divisive. On Smoking In Public Places It was Oscar Wilde who once described smoking as the perfect pleasure. His view was based on the fact that despite how many times you had one the pleasure remained and you were always seeking to continue it. This comment was however made many years ago, and perhaps the public's perception of smoking has changed nowadays? So much so that the Scottish Executive has recently indicated a determination to ban smoking in all public places. In September 2004 Jack McConnell, Scotland's First Minister visited Dublin to witness first hand how the ban in public places, and in particular public bars, had been received. It appears that whilst there he had a Road to Damascus conversion, and on his return indicated his desire to introduce a ban in Scotland in 2006. It is often said that the worst types of laws are those made in haste, and it will be interesting to see how the legislation is prepared, and ultimately interpreted. For example what is a 'public place', the type of fine to be imposed on individuals who smoke, and on bars and restaurants that do not, or fail to, comply. This of course presupposes that a ban will actually be introduced in 2006. Though all the early signs, such as an almost unnoticed public consultation, seem to make it somewhat inevitable. The most obvious reason for a ban on smoking in public places is on health grounds. The arguments are compelling and no one doubts that there is a health risk. I should perhaps indicate some personal disclaimers here. My wife is a 20 a day smoker and my mother died of cancer, while I have been known to indulge in the odd cigarette when accompanied with some alcohol. The argument for imposing the ban is that it will restore, or most likely improve, the health of the nation. For any amateur philosophers reading this it is ultimately a utilitarian argument. That is to say a ban brings the greatest good to the greatest amount of people. It is argued that by introducing laws to curb smoking health will generally improve. The arguments against introducing the ban are more political and reflect the policy of the government. It does however open up a wider argument between government policy and the rights of the individual. Everyone knows that smoking is bad for you, but so is drinking alcohol, not doing enough exercise, releasing poisonous fumes from cars and industrial premises. But no ban is being introduced in these other areas. The other argument is that if smoking is so poisonous then why not just ban it out right. The whole debate was given some prominence recently when the Health Secretary Dr John Reid (a reformed smoker who was on 40 a day) indicated that a cigarette was one of the few forms of pleasure enjoyed by working class people (under a Labour government!) Interestingly, the only people who challenged this were middle class professionals. For many people the right to smoke is seen as the same as the right to have a drink, the right to enjoyment and the right to live as you like. However, by introducing what is a controversial piece of legislation the Scottish Executive has perhaps signalled that they are now prepared to take a more robust approach to being in government. They need to be perceived as governing hardball after the problems encountered over banning fox hunting, and the Section 28 Debate. It appears that Mr McConnell, himself an ex smoker, wants to be seen as much more dynamic in his approach to government. One might note that any new piece of legislation that is high profile and controversial is normally the result of political debate, not considered legal judgement. It makes for bad law. The smoking ban debate and it's result will be no different. Whether one agrees or disagrees the legislation that emerges, which will ultimately affect us all, will be a combination of personal, political, and cultural viewpoints. This law will relegate important legal philosophy. On a personal note I recently visited a cancer specialist in Glasgow and noted that he was from Ireland. I couldn't help but mention us emulating our Irish brethren by introducing a smoking ban in Scotland. His own view that the only way to dramatically improve the health of the nation is by a combination of good diet, good education and a positive outlook. A combination of these can add ten years to your life. This reminded me of the American comedian who also heard that if you stop smoking it can add ten years to your life. However as it is the last ten, what are you missing? The drooling years! I rest my case! PMcH 2004.
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Paul McHolland
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