In the UK, 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 in the competition for scarce resources. 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, particularly through section 3 HRA, and through the development of a jurisprudence of positive obligations in the ECHR. Although the substantive focus of the book is on developments in English law, it has theoretical human rights, international and comparative constitutional dimensions. Thus, issues of justiciability in English administrative law have been explored against a background of two factors: on the hand, a growing acceptance of the need for balance in the protection afforded to civil and political and socio economic rights in modern constitutional arrangements, and, on the other hand, controversy as to whether courts could make a more effective contribution to the protection of socio economic rights by 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

Author Biography

Ellie Palmer is a Senior Lecturer in the Department of Law at the University of Essex.