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This essay will discuss the nature of Human Rights legislation and whether it provides
an effective safeguard for the fundamental rights and liberties of the individual.
It will look at the nature of Human Rights legislation: focusing on the laws
children and assess both the strengths and weaknesses of this legal methodology.
understand what they are and how they have developed over time into the legal
The first international treaty on Human Rights was the Universal Declaration of
Human Rights (the Declaration) in 19481, this set into being some principles that have
since been incorporated in human rights legislation: that they apply to all; may not be
withdrawn; and that no one right is more important than any other right.2 The
The Council of Europe created the European Convention of Human Rights (the
Convention) in 1950 to provide legal protections for the concepts in the Declaration3.
In 2000 the Labour Government brought the majority of The Convention into English
The rights in The Convention and The Act are divided into two categories, those
which are unqualified – that is that they may not under any circumstances be removed
1
W100 Book 6 Rights Page 31-32 Open University 2009
2
Ibid page 15
3
Ibid page 61-62
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For example Articles 3 and 4 of the Act, which prohibit torture and slavery
respectively are unqualified rights, the Act allows for no circumstance where the State
may countenance a derogation from these rights. The rights to a private life and
freedom of speech (Articles 8 and 10 of the Act) are qualified and there are
legislation. The conflicts between rights to a private life and to freedom of expression
Article 8 of the Act states that there should be: ‘respect for everyone’s private and
family life, home and correspondence’4 This means the right to get on with life
without undue interference. Article 10 of the Act provides the right to pass
Until 2000 when the Act came into force, there was no right to privacy under English
Law, however the laws surrounding Breach of Confidence had been used to protect
The legal nature of confidence was distilled in Coco v A N Clark (engineers) Ltd
(1969) RPC 41 which placed three requirements to show that confidence had been
breached. That: the information was confidential; that was given so as to require
4
W100 Reader 3 Page 25 Open University 2009
5
Ibid. page 26
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originator.6
This protection of confidence is not absolute, Lord Goff ruling in Attorney General v
not be protected under the law. These were: when the information is in the public
domain; when it is trivial; and when there is sufficient public interest in its
disclosure.7
between the two parties requiring the confidence; with privacy the question is about
This is illustrated by the case of Peck v UK in 1995. Mr. Peck, sought a judicial
review after his initial complaint against the media companies was upheld by the ITC
but was turned down on the grounds that there was no general right to privacy under
English Law. 9 Mr Peck subsequently took his case to the European Court of Human
Rights who upheld his complaint as a breach of his Article 8 rights to a private life.10
This illustrates the essential difference between confidence and privacy, while Peck’s
privacy had been violated, there was no relationship obliging confidence for a breach
6
W100 Book 6 Rights Page 94 Open University 2009
7
Ibid. Page 94
8
McNae’s Essential Law for Journalists 20th edition page 385-386 Oxford University press 2009.
9
Reader 3 Peck v UK page 42 Open University 2009
10
Ibid page 42-43
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This was reinforced the following year when the House of Lords ruled that English
Law did provide a channel of recourse against the ‘unjustified publication of private
What is most revealing about the Campbell case was the nature of the information that
was provided to the public. There were five distinct elements of the information,
which were: Ms Campbell’s drug addiction; that she was receiving treatment for the
addiction; that the treatment was at Narcotics Anonymous; the details of the
The presiding judges viewed that, because Ms Campbell had previously denied taking
drugs, the first two elements would be in the public interest to reveal; however the
others were not because of the intrusive nature of the revelations and their likely
This ruling begins to define the limits of the right to privacy and freedom of
11
McNae’s Essential Law for Journalists 20th edition page 386 Oxford University press 2009
12
Ibid page 386
13
McNae’s Essential Law for Journalists 20th edition page 411-412 Oxford University press 2009
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provides an embryonic framework where the public interest in Article 10 rights are
paramount and where they should be subservient to the rights to a private life under
Article 8.
Another area where Article 8 rights come into conflict is in the contentious matter of
parental discipline. Whereas in the previous example the rights in conflict are both
quantified, in the matter of family discipline the argument is between the right to
enjoy a private and family life and the unqualified right to not be subjected to
protect others or to prevent crime, the issue is: what form of conduct would breach the
Article 3 rights of the child who is being chastised, or be classified as a crime under
English Law?14
Under English Law the assault offence has been qualified by the defence of
The standard for which was set out in Cockburn CJ in R v Hopley (1806) which stated
corporal punishment should be moderate and reasonable which was defined as: not
being given in anger or rage; not extreme in its nature or amount; not beyond the
was intended.16
14
W100 Reader 3 Page 25-26 Open University 2009
15
W100 Block 6 Rights, Page 120 Open University 2009
16
Ibid page 120
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made it a criminal offence to assault, neglect or mistreat a child in a way that is liable
carried a caveat under section 1 (7) of the Act which provided every parent with the
As the original defence of reasonable chastisement did not attempt to define the
nature of what counted as reasonable, rather than defined what was not, the common
law defence naturally adapted to fit what was seen as reasonable during the period it
was applied.18
The defence was criticised by the European Court of Human Rights [ECHR] during
the case of A v United Kingdom [1998] 27 EHRR 611. In this case, a nine-year-old
boy had been examined by a doctor and was found to have been beaten with some
The stepfather had been charged with assault occasioning actual bodily harm and,
whilst not denying that he had beaten the boy, claimed the defence of reasonable
chastisement in his defence. The judge advised the jury that the defence could only be
applied if the punishment was reasonable, but did not add any clarification as to what
may have been deemed so. The jury acquitted the defendant on the grounds that the
The case was then referred to the ECHR which held that the boy’s treatment had
contravened his Article 3 rights and ruled that the reasonable chastisement defence
17
Ibid page 120-121
18
Ibid page 121
19
Ibid page 133-4
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that the State should be held responsible under The Convention for its failure to
However the court did not go so far as to declare that all forms of physical
punishment would be in violation of Article 3 rights, indeed emphasising that this was
not the nature of its ruling. Rather the court’s ruling prohibited the use of excessive
force, that is where the injury caused would be sufficient to bring about long-term
With the promulgation of the Human Rights Act, the rulings of the ECHR had to be
taken into account when deciding matters of English Law requiring the findings of A
v United Kingdom [1998] to be taken into account for any defence of reasonable
chastisement.22
Further to this the Government passed the Children Act 2004 which removed the
wounding, causing grievous bodily harm or child cruelty. The defence did, however,
remain intact when a parent was charged with common assault for smacking. 23
This in effect allowed for the physical punishment by parents of a child so long as the
punishment left no lasting mark, such as a bruise, cut or swelling. While this, on the
face of it, would seem to be a sensible refinement of existing law, it does fail to take
bluntly: some children bruise far more easily and for far longer periods than others.
20
Ibid page 134
21
Ibid page 134
22
Ibid page 134
23
Ibid page 121
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chastisement defence that the guilt may not so much be in the hands of the chastiser,
From the examples above Human Rights legislation can have been said to have acted
in some way as a defender of the basic freedoms of the individual. Although not
having provided an absolute right to privacy in the UK, since the Human Rights Act
breach of confidence and the laws that protect children from undue injury by their
However, the competing nature of the laws, together with the nature of their wording,
have created a lack of certitude among many who are subject to them. As shown by
the Campbell case, there is no clear dividing line between the rights of privacy and
the Children’s Act 2004 may potentially allow for injustice because of the fact that a
It is hard to justify the statement that Human Rights ensure basic rights and freedoms
as they currently stand. Although they can arguably have enhanced the ability to
defend ones rights within the courts, the competing nature of conflicting rights and the
large areas of uncertainty that currently exist would suggest that the legislation falls
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References
McNae’s Essential Law for Journalists 20th Edition Oxford University Press 2009