EMTA 07 Greg Baker - Personal Identifier A8321851 Human Rights ensure basic rights and freedoms.

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 surrounding privacy; freedom of expression; and those concerning the discipline of children and assess both the strengths and weaknesses of this legal methodology.

In order to examine the laws surrounding Human Rights it is first essential to understand what they are and how they have developed over time into the legal framework used to support them.

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being some principles that have since been incorporated in human rights legislation: that they apply to all; may not be withdrawn; and that no one right is more important than any other right.2 The Declaration was not law, but rather a code of conduct.

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 law with the Human Rights Act (the Act) 1998.

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 2

W100 Book 6 Rights Page 31-32 Open University 2009 Ibid page 15 3 Ibid page 61-62

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EMTA 07 Greg Baker - Personal Identifier A8321851 by the State, and those which are qualified – that is those for which certain derogations may apply.

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 circumstances – such as on grounds of national security - where these rights may be removed from an individual.

There is an in-built competition between the freedoms ensured by Human Rights legislation. The conflicts between rights to a private life and to freedom of expression illustrate how this can cause complex legal arguments.

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 information to others and the rights to express opinions and ideas. 5

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 certain private matters.

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 5

W100 Reader 3 Page 25 Open University 2009 Ibid. page 26

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EMTA 07 Greg Baker - Personal Identifier A8321851 confidentiality; and that it is used in an unauthorised manner to the detriment of its originator.6

This protection of confidence is not absolute, Lord Goff ruling in Attorney General v Guardian Newspapers [1990] provides three circumstances where confidence would 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

Whilst confidence and privacy are superficially similar, there is a fundamental difference between them: in order to have a confidence there needs to a relationship between the two parties requiring the confidence; with privacy the question is about the nature of the information itself.8

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 to have occurred and therefore no protection under English Law.

6 7

W100 Book 6 Rights Page 94 Open University 2009 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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EMTA 07 Greg Baker - Personal Identifier A8321851 After The Act went into force the requirement for a relationship of confidence changed, Lord Justice Sedley said in the Court of Appeal:

“The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy” (Douglas and Others v Hello! Ltd [2001])11

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 information’ (Campbell v MGN Ltd [2005]).12

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 treatment; and a photograph of the model leaving a treatment session.

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 impact on her ongoing treatment.13

This ruling begins to define the limits of the right to privacy and freedom of expression under the law as it currently stands. By making a qualitative judgement on

11 12

McNae’s Essential Law for Journalists 20th edition page 386 Oxford University press 2009 Ibid page 386 13 McNae’s Essential Law for Journalists 20th edition page 411-412 Oxford University press 2009

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EMTA 07 Greg Baker - Personal Identifier A8321851 the aspects of the Daily Mirror’s story alongside Ms Campbell’s rights to privacy, it 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 inhuman or degrading treatment under Article 3 of The Act.

As Article 8 is a qualified right and one of the allowed derogations is in order 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 reasonable chastisement. This allowed parents to apply physical punishments to children within limits without fear of being convicted of assault.15

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 child’s ability to withstand; not administered with an unsuitable implement; or if harm was intended.16
14 15

W100 Reader 3 Page 25-26 Open University 2009 W100 Block 6 Rights, Page 120 Open University 2009 16 Ibid page 120

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EMTA 07 Greg Baker - Personal Identifier A8321851 This defence was further refined by the Children and Young Persons Act 1933 which made it a criminal offence to assault, neglect or mistreat a child in a way that is liable to cause unnecessary suffering or damage to well-being. However the protection carried a caveat under section 1 (7) of the Act which provided every parent with the right to punish their child. 17

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 considerable force with a garden cane by his stepfather.

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 punishment meted out had indeed been reasonable.19

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 18

Ibid page 120-121 Ibid page 121 19 Ibid page 133-4

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EMTA 07 Greg Baker - Personal Identifier A8321851 had failed to properly protect the boy from such a severe beating. It furthermore found that the State should be held responsible under The Convention for its failure to protect vulnerable people from such maltreatment.20

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 physical or psychological damage.21

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 defence of reasonable chastisement for offences of actual bodily harm, unlawful 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 into consideration the differing nature of different children’s physiologies – to put it bluntly: some children bruise far more easily and for far longer periods than others.
20 21

Ibid page 134 Ibid page 134 22 Ibid page 134 23 Ibid page 121

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EMTA 07 Greg Baker - Personal Identifier A8321851 There is a question whether by adding this caveat to the existing reasonable chastisement defence that the guilt may not so much be in the hands of the chastiser, but on the skin and capillaries of the chastised.

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 1998 privacy has become an important consideration when adjudicating cases of breach of confidence and the laws that protect children from undue injury by their parents have become more robust.

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 those of freedom of expression. Also the definition of reasonable punishment under the Children’s Act 2004 may potentially allow for injustice because of the fact that a certain child may bruise easier than another.

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 far short of ensuring them.

Word Count: 1991

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EMTA 07 Greg Baker - Personal Identifier A8321851

References

W100 Reader 3 Open University 2009

W100 Block 6 Rights, Open University 2009

McNae’s Essential Law for Journalists 20th Edition Oxford University Press 2009

Points to Note for Students eTMA 07 The Course Team have provided these points to note to help you with your learning. Your answer needed be presented in an essay format with an introduction, main body and conclusion. The question was asking you to critically analyse a statement drawing on the law of privacy and family discipline.

Introduction
A good introduction needed to explain the question and how it would be answered. An example of a good introduction could have been: • • • Consider what the statement means by basic rights and freedoms Explore the meaning of basic rights and freedoms within the arena of human rights Draw upon the law in the UK relating to privacy and family discipline to critically analyse whether human rights ensure basic rights and freedoms

Main body
This needed to be written in a clear and logical manner using a paragraph structure. A good main body had a clear structure with each paragraph being relevant to the question asked. The answer should be illustrated with relevant authority i.e. statute or case law.

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EMTA 07 • • • • Greg Baker - Personal Identifier A8321851 What are basic rights and freedoms (for example, the UN Charter refers to human rights and fundamental freedoms) what is a human right? reason for human rights possible limitations on rights and freedoms

Critical analysis of the statement drawing upon privacy and family discipline There were a number of ways in which this could be approached and credit was given for any sensible approach which used the areas of privacy and family discipline to critically analyse the given statement. Answers which just explained the law on privacy and family discipline were given limited credit. In relation to privacy a good answer needed to provide a definition of the meaning of privacy and an explanation of the current law in relation to privacy and whether this ensures basic rights and freedoms. • Meaning of privacy
An explanation of the current UK law in relation to privacy. The essay needed to explain that there is no right to privacy in the UK but those who allege that their privacy has been invaded commonly rely on the action of ‘breach of the right to confidence’. Three elements must be proven to show a breach of confidence [Coco v A N Clark (Engineers) Ltd 1969]. • The information must have ‘the necessary quality of confidence about it’ in that it is secret or confidential. • The information ‘must have been imparted in circumstances importing an obligation of confidence’. • There must be an ‘unauthorised use of the information to the detriment of the party communicating it.

• •

Consideration of Article 8 of the European Convention of Human Rights Circumstances in which privacy is not protected

Here the law is often required to balance rights. A good answer needed to consider why privacy is regarded as a basic right. Areas students may choose to use as examples may include; national security; police powers of surveillance; freedom of the press versus individual human rights; freedom of information, privacy and sexual identity. There should be some consideration of the circumstances in which privacy is not protected. A conclusion in relation to privacy and the statement given was needed. Does the law on privacy developed under the area of human rights ensure that basic rights and freedoms are ensured? With regard to family discipline the law on corporal punishment in England and Wales explaining the impact of section 58 Children Act 2004 should have been considered. The rights of both parents and children in the light of Article 8 of the European Convention should have been considered. Respect for family and private life and the Human Rights Act more widely should also have been considered. • The law on corporal punishment in England and Wales explaining the impact of section 58 Children Act 2004. Section 58 Children Act 2004 - intended to limit physical punishment by parents or guardian. If charged with common assault for

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EMTA 07 Greg Baker - Personal Identifier A8321851 smacking a child then a parent or guardian can raise the defence of ‘reasonable punishment’. • The need to consider the rights of both parents and the child in the light of Article 8 of the European Convention and the respect for family and private life and the Human Rights Act more widely.

Students should provide a conclusion in relation to family discipline and the statement given. Does the law in relation to family discipline developed under the area of human rights ensure that basic rights and freedoms are ensured?

Conclusion
The answer needed to end with a sensible conclusion. This needed to draw together the argument developed through the main body of the answer. The argument and the conclusion needed be based on a discussion of the evidence presented in the block 6 and bring the reader back tot eh question – a critical evaluation of the statement considering the law on privacy and family discipline.

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