This essay will consider how the law in the United Kingdom has to find a balance between competing human rights. It will firstly provide an overview of Human Rights outlining the progression through the years of the Human Rights ideology before moving to look specifically at the law on privacy and family discipline and the issues faced by the courts in balancing the different Human Rights.
The term Human Rights refers to the basic rights of all individuals irrespective of nationality, race, religion, ethnicity or gender and can be considered moral rights. Moral rights are natural rights that exist from birth which are applicable to everyone and universal irrespective of which society they live in. These rights cannot be given up or taken away.
To have rights suggests that others have obligations. The state is obligated to respect, protect, or provide for that right. Failure by a state to do this would be an infringement of human rights.
In contrast to moral rights, legal rights are artificial in so much that they are created by governments, apply only to a people in a particularly distinct society, are not universal and can be given up or modified.
The principle of universal rights applicable to everyone was first recognised by a document of the United Nations, the Universal Declaration of Human Rights, which was signed on 10th December 1948 with the intention of improving the human rights worldwide.
Following the atrocities of WWII, the Council of Europe was formed in 1949 who in turn agreed a treaty, The European Convention of Human Rights in which the member states agreed to recognise essential rights of the people. All states that ratified the ECHR agreed to abide by the terms of the treaty and in turn, the treaty is enforced by member states.
The Council of Europe set up the European Court of Human Rights in 1950. This Strasbourg based court hears cases brought under the Convention from citizens of the member states after having first exhausted the domestic court system.
In the past, the court decided that the UK, in many cases brought before it, had breached the rights of claimants under the Convention.
These cases led to changes in British law such as in Malone v Metropolitan police Commissioner (1979) where the government introduced the Interception and Communications Act 1985.
The process of taking a case to Strasbourg was very costly and slow and the ECtHR took the view that it would be more effective for each country to incorporate the Convention into its domestic law. The Human Rights Act 1998 was subsequently passed and became effective from the 2 October 2000. Now a person can bring a case of human rights infringements in the UK court system instead of having to go to Strasbourg.
The HRA does not allow the courts to overrule an Act of Parliament. If a court cannot interpret or apply a particular Act of Parliament in line with the Convention, then a Declaration of Incompatibility is made. The courts and parliament then have to...