This essay sets out to critically analyse the statement: "Human rights ensure basic rights and freedoms". The essay will explain what it is to have a rights and the background of Human Rights. The essay will the move forward to examine the law on privacy, Article 8 of the European Convention of Human Rights and family discipline within the United Kingdom in order to reach a conclusion as to the accuracy of the above statement. There are two types of rights these are moral rights and legal rights.
Moral rights naturally exist to all human beings they are universal therefore applicable to everyone and are inalienable. Legal rights are artificial. They are given only in law, not simply on the basis that we are human. Legal rights exist only in certain societies or to those in a certain legal system they are therefore, only applicable to some people and are inalienable. Human Rights legislation is based on the theory that both moral and legal rights should correspond and that legal rights should build on the foundation of moral rights.
When thinking about rights it is important to understand that there is a difference between rights and desires or needs. Rights are different to something one may believe is desirable or even morally acceptable, rights are something that a person is entitled to. Therefore, if a person has a right to something, for example housing or shelter it becomes the duty of another person or body to supply it to the person in need. The rights of an individual have to be controlled and are objectively balanced against the rights of a community.
With rights comes the implication of freedom, that is to say that by living in a free country a person has the right and freedom to do and say as they choose without any interference from others. Nevertheless rights and freedom are separate as freedom is not absolute and has to be curtailed, as no individual has the right to hurt others verbally or physically simply because they choose to. A person cannot take property that does not belong to them just because they so desire it, this would infringe on the rights of other individuals who are supposed to have the same rights.
This is where the state is required to limit and balance the freedoms that we enjoy individually in order to resolve conflict. The introduction of the Magna Carta and The Bill of Rights 1689, mark occasions of serious discussions concerning ideas about rights. Before these documents, the United Kingdom had no written constitution covering these issues. It was not until 1998 that the government introduced the Human Rights Act. This came into force in 2000 in order to maintain equality in a multicultural society, the state attempts to maintain stability of the rights of those of other people against the other minorities.
Due to the controversial nature of rights based law, limitations are put in place to prevent one person's rights infringing on another person's rights. An example can be drawn from the right to freedom of speech, while it is a right for a person to have the freedom of speech, a person does not have the right to speak in a racist manner and with society constantly evolving laws have been put in place to prohibit such expression, therefore it is evident that there exists a right to freedom of speech however, a duty is placed upon the individual or group to use that right responsibly.
Human Rights have been adapted and changed through the history and ages from slaves being outlawed and women having now equal rights to men, however woman's social rights are still under disrepute with things such as income from employment. Once again due to the controversial nature of rights courts are required to deliberate over rival rights to make judgments which balance the issues in hand without being morally or politically neutral.
For example there have been passionate debates of the rights of householders defending their property and privacy against intruders and the rights of the intruders. Human rights are important within the European Union however, it becomes harder to enforce in less developed countries where the right to an education would be deemed less important in comparison to the issues of starvation and torture. It is here that it would be fair to imply that although Human Rights are law, not everyone has rights or at least not in their entirety.
In these countries individuals still have rights and therefore there is a duty to provide them. But basic rights such as freedom of speech do still exist to all individuals residing within the European Union and this essay outlines basic rights not every right considered within Human Rights. Moving on to the law on privacy, within the United Kingdom a right to privacy does not exist as such. There are however, two ways in which an individual's privacy can be protected these are the right to confidentiality and Article 8 of the European Convention of Human Rights.
A case can be brought to court under the law on confidentiality and/or Article 8 of the ECHR. The case of Prince Albert v Strange (1849) I H & 21 -22 illustrates how privacy is preserved under the right to confidence. Confidentiality states that everyone has the right to have certain information kept confidential. Privacy is where an individual is left alone to live life freely without intrusion, with their independence, dignity and integrity. The right to privacy however, has to be balanced against other rights and from this balancing act conflicts arise.
It would be impossible to coexist without certain rules. Article 8 of the ECHR provides, inter alia, the protection of private life, it states that "there should be no interference with the exercise of this right by a public authority, except where it is necessary: in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals and/or the protection of the rights and freedoms of others" (Arthur, 2009, P103).
Therefore where it becomes of public interest privacy cannot be protected. The government and courts are required to enforce rules to ensure that everyone can live in a peaceful manner. Confidence can be proved as being breached where the three elements provided by Coco v A N Clark (Engineers) Ltd (1969) RPC 41 have been breached. The information must have the necessary quality to be considered confidential. It should not be parted with where there is an obligation of confidence.
The information must be used in such a manner that it becomes to the detriment to the party who originally divulged the information and used in an unauthorized manor. Lord Goff in Attorney General v Guardian Newspapers  1 AC 109 stated that confidence would not be protected where the principle of confidentiality is not applicable to information and such information is generally accessible to the public. A duty of confidence cannot be applied to information that is useless or trivial or when it is in the public interest to divulge the information.
The United Kingdom's law on confidence is very difficult to define and is judged on a case by case basis on each case's own merits. When considering the rights in relation to corporal punishment and family discipline; the law of England and Wales uses the law of assault to uphold the abolishment of corporal punishment. Under the law of assault it becomes an offence to act in a manner that causes a person to fear for their safety. Under this law a person does not need to use physical contact to constitute assault.
In the United Kingdom parents were allowed to physically punish their children but were unable to do so beyond what was considered reasonable chastisement in R v Hopley  2 F& F 202, Cockburn CJ provided a test determining what constituted as reasonable chastisement. The standard set by him was "a parent […. ] May for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however with this condition, that it is moderate and reasonable. " (Arthur, 2009, P120).
Cockburn CJ gave examples of punishment not being of moderate and reasonable nature if it is done so to fulfill the parents passion or rage where it is excessive in its nature beyond the child's tolerance, implemented with the use of an object not designed for child punishment and finally the punishment cannot cause danger to the child's life or limb. In 2004 the Children Act 2004 was brought into force in England and Wales section 58 of the said Act eradicates reasonable chastisements as a defense to the offence of any element of child cruelty, whereby a child may suffer cuts, abrasions or any long lasting bruises.
It does not however, eradicate reasonable chastisement as a defense where the child is left without any marks or damage. This was brought into law due to the criticism that physical damage done to adults has been outlawed with the law of assault however, in society children were not protected from the same. With the nature of children being less matured and developed than adults it places them in a more vulnerable position, they too are therefore at risk of physical and mental long lasting effects from acts of assault and a responsibility needed to be taken to ensure the physical and mental welfare of minors.
Since the Children Act 2004 Sweden banned corporal punishments and the use of spoons sticks belts etc is now virtually non-existent . Corporal punishment is now considered an ineffective way of punishment in Sweeden and in with the United Kingdom following suit it is also the same. With this change in the law, the number of adolescent deaths linked to parental discipline has fallen, child crime rates remained constant if slightly fallen and the suicide rates of children have also decreased (Arthur, R, p143 (2009).
Family discipline like all other subjects considered have had restrictions put in place to protect individuals from harm, to ensure that every individuals rights are up held but that no individuals rights are of higher importance than another. Statistics have proved, as detailed within this essay, that placing certain restrictions upon a parent when punishing a child allows the child a better quality of life and continues to instill certain morals in to a child. Abolishment of this degree of punishment still gives a parent right to discipline their child however not in a more controlled manner.
(Arthur, R, p143 (2009) In summary, human rights do ensure basic rights and freedoms however this is indeed limited to just that, basic. It would be impossible to allow every individual within society a free reign without consequence for actions. The government places limitations on these rights to ensure a person acts responsibly when exercising their rights and freedoms. It is in the public interest that no individual's rights are favoured more highly than another's.
Limitations are in place to ensure that one individual's rights do not infringe upon another's rights and freedoms, to ensure equality for all before the law. Therefore, every individual does have rights and freedom in basic form, however with this comes the responsibility to ensure those rights are exercised with common sense. There are many conflicts arising from the issue of Human rights and freedoms and liberties but to preserve every individual's rights there must be rules in place, society simply could not coexist without the protections these exceptions or conflicts offer.