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Judicial Review, Socio-Economic Rights and the Human Rights Act

By: Ellie Palmer
Media of Judicial Review, Socio-Economic Rights and the Human Rights Act
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Published: 21-04-2009
Format: Paperback
Edition: 1st
Extent: 379
ISBN: 9781841139760
Imprint: Hart Publishing
Series: Human Rights Law in Perspective
Dimensions: 234 x 156 mm
RRP : £36.99
 

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Loren Epson

About Judicial Review, Socio-Economic Rights and the Human Rights Act

In the United Kingdom during the past decade, individuals and groups have increasingly tested the extent to which principles of English administrative law can be used to gain entitlements to health and welfare services and priority for the needs of vulnerable and disadvantaged groups. One of the primary purposes of this book is to demonstrate the extent to which established boundaries of judicial intervention in socio-economic disputes have been altered by the extension of judicial powers in sections 3 and 6 of the Human Rights Act 1998, and through the development of a jurisprudence of positive obligations in the European Convention on Human Rights 1950. Thus, the substantive focus of the book is on developments in the constitutional law of the United Kingdom. However, the book also addresses key issues of theoretical human rights, international and comparative constitutional law. Issues of justiciability in English administrative law have therefore been explored against a background of two factors: a growing acceptance of the need for balance in the protection in modern constitutional arrangements afforded to civil and political rights on the one hand and socio-economic rights on the other hand; and controversy as to whether courts could make a more effective contribution to the protection of socio-economic rights with the assistance of appropriately tailored constitutional provisions.

Table Of Contents

INTRODUCTION 1
1 THE ROLE OF COURTS IN THE PROTECTION OF SOCIO-ECONOMIC RIGHTS: INTERNATIONAL AND DOMESTIC PERSPECTIVES
I. The Indivisibility of Human Rights
A. Understanding Socio-economic Rights as Human Rights
B. Two Faces of Liberty: Conflicting Ideologies of Socio-economic and Civil and Political Rights
C. Socio-economic Rights, Resources and the Negative–Positive Dichotomy
D. A Unified Approach to Human Rights: To 'Respect, Protect and Promote' the Rights
E. The Normative Content of Socio-economic Rights: Programmatic Aspirations and the 'Minimum Core'
II. The Protection of Socio-economic Rights in Domestic Courts
A. Issues of Justiciability: Achieving Social Justice in the Round?
i. Institutional Competencies
ii. Welfare Politics, Courts and Conflicting Theories of Constitutional Review
B. The Protection of Socio-economic Rights through the Traditional Canon of Civil and Political Rights
C. The Dedicated Pursuit of Social Justice: The South African Model
D. The Enforcement of Socio-economic Rights: Cooperative Dialogue in the South African Constitutional Court?
III. Conclusion
2 THE REGIONAL PROTECTION OF SOCIO-ECONOMIC RIGHTS: EUROPE
I. Introduction
II. The European Convention on Human Rights (ECHR) 1950
A. Background and Context: The Negative–Positive Dichotomy Revisited
B. Incremental Development of Positive Obligations in ECHR Rights
C. Methodological Issues: Grafting a Jurisprudence of Positive Obligations onto the ECHR Rights
D. Reconciling the Development of Positive Obligations with the Negative Thrust of the ECHR
E. Theoretical Justifications for Positive Obligations and the Problem of Resources
III. The Protection of Socio-economic Rights in the ECHR
A. Developing Core Values in the ECHR Rights
B. Article 2: A Right to Health Treatment?
C. Article 3: Respect for Human Dignity
D. Article 8: Protecting Physical and Psychological Integrity
E. Article 14: The Equal Distribution of Public Goods?
F. Article 6: Due Process in Public Law Challenges
IV. The Protection of Socio-economic Rights in EC/EU Law
A. The Development of a Doctrine of Fundamental Rights in EC/EU Law
B. The Charter of Fundamental Rights of the European Union
C. The European Court of Justice (ECJ): Social Solidarity and Access to Public Services in Member States
i. Undue Delay
ii. Article 49 EC Treaty
V. Conclusion
3 COURTS, THE UK CONSTITUTION AND THE HUMAN RIGHTS ACT 1998
I. Introduction
II. Reading and Giving Effect to ECHR Rights in UK Courts
A. The Background and Political Context of the Human Rights Act (HRA) 1998
B. The Purpose and Structure of the HRA
C. General Principles of Constitutional Interpretation in the United Kingdom
D. The Interpretation of Section 3 HRA
E. Deference: The Boundaries of Interpretative Possibility under Section 3 HRA
F. Section 2 HRA and the Scope of ECHR Rights: Taking Account of Strasbourg Jurisprudence
i. Stare Decisis
G. Section 6 HRA: The Duty of Public Authorities to Act Compatibly with the ECHR Rights
I. Human Rights or Economic Liberalism: Contested Interpretations of Section 6(3)(b) HRA
III. Conclusion
4 JUDICIAL REVIEW: DEFERENCE, RESOURCES AND THE HUMAN RIGHTS ACT
I. Introduction
II. The Constitutional Foundations of Judicial Review
A. Ultra Vires or Rights?
B. The Reception of Human Rights in English Law prior to the HRA
C. Resistance to Human Rights in English Administrative Law
D. Judicial Deference, Resources and the Ultra Vires Paradigm of Review
III. Public Law, Deference and the Human Rights Act
A. The Limits of Judicial Intervention under Section 6 HRA
i. Context and Proportionality: A Bright-line Division in Public Law?
B. Justification, Transparency and Reasons to Defer
C. Deference Embedded: The Artificial Division between Policy and Law
D. Deference in Context: Landlord and Tenant Repossession Cases
E. Deference, the Subject Matter of Disputes and the Nature of the Rights
F. Democracy, Human Rights Values and the 'Unity of Public Law'
IV. Conclusion
5 FROM NEED TO 'CHOICE' IN PUBLIC SERVICES: THE BOUNDARIES OF JUDICIAL INTERVENTION IN PRIORITISATION DISPUTES
I. Introduction
A. From Need to Choice in NHS and Public Authority Services: The Post-welfare Landscape of the United Kingdom
II. NHS Rationing: The Role of Courts in Disputes over Access to Medical Services
A. The Limits of Judicial Intervention in Health Care Rationing: R v Cambridge Health Authority, ex parte B (Re B)
B. NHS Policies under Scrutiny: Legitimate Interventions in Public Administrative Law
i. Legitimate Expectation: The Meeting of Individual Needs
ii. Irrational Allocation Policies: Distinguishing Re B
C. Choice, Socio-economic Entitlements and EU Law: Challenging the Status Quo
III. Local Authority Resource Allocation Disputes
IV. Interpreting Local Authority Statutory Duties Post-HRA
A. Section 17 Children Act 1989: Accommodating Children and their

Reviews

“...this well-written and very informative book is a valuable addition to the rapidly growing body of literature on economic and social rights adjudication under the Human Rights Act 1998 (HRA) and, more generally, the European Convention on Human Rights (ECHR)...the author deals excellently with a wide range of case law and issues and the book is essential reading for those working on the protection of socio-economic rights in the UK and other jurisdictions where such rights have been afforded protection through the judicial application of civil and political rights. More generally, those with an interest in the operation of the HRA and the key debates surrounding that instrument will also gain much from this work.” –  Aoife Nolan, European Human Rights Law Review, Issue 1

“...this book is much more than a factual exposition of the recent case law. The interest in this book lies in the breadth of the context in which her analysis is placed...an interesting and educational read which will undoubtedly deepen the reader's understanding of the complexities and trends in this fascinating and continually developing area of law.” –  Samantha Broadfoot, Judicial Review, Vol 13:2

“…a well written, accessible and fascinating insight into the development of socio-economic rights and a welcome contribution to an important debate.” –  Les Allamby, Frontline

“...a valuable and timely contribution to this growing field...one of the strengths of Palmer's book is that her analysis is contextualised within a discussion of broader political and economic issues...a clear, lucid and detailed discussion that will be of use to all those interested in this growing and dynamic field.” –  Murray Wesson, Public Law

“The strengths of this work include its breadth of coverage, extensive footnoting to a wide range of materials from numerous jurisdictions and the author's clear exposition.” –  Alastair Mowbray, European Public Law, Volume 14, Issue 4

“...a detailed account of how some social rights are enforced...Although Palmer's study is one of social rights protection under the Human Rights Act, it begins with valuable accounts of the debate about how best to protect social rights, dealing with a number of familiar arguments...The evidence provided by Palmer creates a real and serious challenge for those of us whose project is to advance the cause of social rights...” –  Keith D. Ewing, International Journal of Constitutional Law, 7(1)

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