Judicial Review, Socio-Economic Rights and the Human Rights Act (Human Rights Law in Perspective)

384 Pages·2007·1.37 MB·English

by  Ellie Palmer

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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 exten-
sion 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, inter-
national law and comparative constitutional law. Issues of justiciability in
English administrative law are therefore explored against a background of two
factors: a growing acceptance of the need for balance in the protection in mod-
ern 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 constitu-
tional provisions.
Volume 10: Human Rights Law in Perspective
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Human Rights Law in Perspective
General Editor: Colin Harvey
The language of human rights figures prominently in legal and political debates
at the national, regional and international levels. In the United Kingdom the
Human Rights Act 1998 has generated considerable interest in the law of human
rights. It will continue to provoke much debate in the legal community, and the
search for original insights and new materials will intensify.
The aim of this series is to provide a forum for scholarly reflection on all
aspects of the law of human rights. The series will encourage work that engages
with the theoretical, comparative and international dimensions of human rights
law. The primary aim is to publish over time books that offer insights into
human rights law in its contextual setting. The objective is to promote an under-
standing of the nature and impact of human rights law. The series is inclusive,
in the sense that all perspectives in legal scholarship are welcome. It will incor-
porate the work of new and established scholars.
Human Rights Law in Perspective is not confined to consideration of the
United Kingdom. It will strive to reflect comparative, regional and international
perspectives. Work that focuses on human rights law in other states will there-
fore be included in this series. The intention is to offer an inclusive intellectual
home for significant scholarly contributions to human rights law.
Volume 1Importing the Law in Post-communist Transitions
by Catherine Dupré
Volume 2The Development of the Positive Obligations under the European
Convention on Human Rights by the European Court of Human Rights
by Alastair Mowbray
Volume 3Human Rights Brought Home: Socio-legal Studies of Human Rights
in the National Context
edited by Simon Halliday and Patrick Schmidt
Volume 4Corporations and Transnational Human Rights Litigation
by Sarah Joseph
Volume 5Human Rights in the Community: Rights as Agents for Change
edited by Colin Harvey
Volume 6Human Rights, Culture and the Rule of Law
by Jessica Almqvist
Volume 7 Property and the Human Rights Act 1998
by Tom Allen
Volume 8 Gender, Culture and Human Rights
by Siobhán Mullally
Volume 9Monetary Remedies for Breach of Human Rights:
A Comparative Study
by Lisa Tortell
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Judicial Review,
Socio-Economic Rights and the
Human Rights Act
Ellie Palmer
OXFORD ANDPORTLAND, OREGON
2007
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Published in North America (US and Canada) by
Hart Publishing
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© Ellie Palmer 2007
Ellie Palmer has asserted her right under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
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be addressed to Hart Publishing at the address below.
Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW
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Data Available
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TJ International, Padstow, Cornwall
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In memory of Mike and to our wonderful children
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Preface
This book is concerned with issues of state responsibility for the meeting of
health and welfare needs in a post-welfare landscape. Historically, legal mech-
anisms for protecting socio-economic rights have been subordinated to those for
the protection of civil and political rights. However, against a background of the
growing recognition of the moral and existential overlap between civil and
political rights on the one hand and socio-economic rights on the other hand,
there has been a flowering of research on the constitutional propriety and effi-
cacy of various methods of protecting socio-economic rights at international,
European regional and domestic levels. One of the primary aims of the book is
to contribute to that growing body of international scholarship.
In relation to the law of the United Kingdom, one of the main objectives here
is to explore the extent to which, following the Human Rights Act (HRA) 1998,
international fundamental human rights standards might be used by the judi-
ciary to protect the social and economic welfare of vulnerable citizens. Thus, the
context-sensitive doctrine of deference by which senior members of the UK judi-
ciary have defined the boundaries of their legitimate intervention under the
HRA in sensitive policy disputes, has been examined against the background of
a more holistic international public law discourse that seeks to reconcile the ten-
sion between legal and political spheres of decision-making through the prism
of fundamental human rights law.
The project has been long, complex and very absorbing. I thank my friends
and family who have been patient and supportive throughout. I also thank my
colleagues Maurice Sunkin, for his encouragement and shared fascination with
the subject, and Brigid Hadfield, for her meticulous assistance with chapter 3.
Thanks are also due to Darren Calley, who willingly helped me with the refer-
encing in chapter 2 and with final preparation of the manuscript. Finally, I
would like to thank Lisa Gourd of Hart Publishing for her very insightful and
thorough editorial assistance.
23 May 2007
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Contents
Preface vii
Table of Cases xv
Table of Legislation xxix
INTRODUCTION 1
1 THEROLEOFCOURTSINTHEPROTECTIONOFSOCIO-ECONOMICRIGHTS:
INTERNATIONALANDDOMESTICPERSPECTIVES 11
I. The Indivisibility of Human Rights 11
A. Understanding Socio-economic Rights as Human Rights 11
B. Two Faces of Liberty: Conflicting Ideologies of Socio-economic
and Civil and Political Rights 15
C. Socio-economic Rights, Resources and the Negative–Positive
Dichotomy 19
D. A Unified Approach to Human Rights: To ‘Respect, Protect and
Promote’ the Rights 22
E. The Normative Content of Socio-economic Rights:
Programmatic Aspirations and the ‘Minimum Core’ 24
II. The Protection of Socio-economic Rights in Domestic Courts 26
A. Issues of Justiciability: Achieving Social Justice in the Round? 26
i. Institutional Competencies 26
ii. Welfare Politics, Courts and Conflicting Theories of
Constitutional Review 29
B. The Protection of Socio-economic Rights through the
Traditional Canon of Civil and Political Rights 34
C. The Dedicated Pursuit of Social Justice: The South African
Model 39
D. The Enforcement of Socio-economic Rights: Cooperative
Dialogue in the South African Constitutional Court? 42
III. Conclusion 47
2 THEREGIONALPROTECTIONOFSOCIO-ECONOMICRIGHTS: EUROPE 49
I. Introduction 49
II. The European Convention on Human Rights (ECHR) 1950 49
A. Background and Context: The Negative–Positive Dichotomy
Revisited 49