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15 - United Kingdom

Asserting Social Rights in a Multi-layered System

Published online by Cambridge University Press:  05 June 2012

By
Jeff A. King
Edited by
Malcolm Langford
Malcolm Langford
Affiliation:
Norwegian Centre for Human Rights, University of Oslo
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Summary

INTRODUCTION

The United Kingdom's constitution is for the most part unwritten. Early protections of rights, such as the Magna Carta 1215 and 1297, and the Bill of Rights 1689, were assertions of the power of barons and later Parliament against the overreaching monarchy, yet were not entirely without benefit to the common person. Human rights were also given some but rather limited protection under the common law. The infringement of certain liberty or property interests has for some time given rise to a principle of statutory interpretation whereby ambiguities were construed against the government. To a more limited extent, courts would on occasion take notice of international human rights law when required to interpret ambiguous statutory terms.

Against such a background, the adoption of the Human Rights Act 1998 (‘HRA 1998’) was a watershed in the United Kingdom's constitutional history. Coming into force in 2000, the Act led to a profound shift in the role of the judiciary as a guardian of rights. However, it would be wrong to think that the HRA 1998 provides the departure point for the United Kingdom on the judicial protection of social welfare rights. Judicial controls on the abuse of power and protection of statutory entitlements in the welfare state were developed largely in the context of administrative law, and also to a great degree through the proliferation of statutory tribunals and non-adjudicative complaints mechanisms.

Type
Chapter
Information
Social Rights Jurisprudence
Emerging Trends in International and Comparative Law
 , pp. 276 - 294
Publisher: Cambridge University Press
Print publication year: 2009

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References

Craig, P., Administrative Law, 5th edition (London: Sweet & Maxwell, 2003), pp. 562–568Google Scholar
Bennion, F. A. R., Statutory Interpretation, 4th edition (London: Butterworths, 2002), pp. 705–735.Google Scholar
Hunt, M., Using Human Rights Law in English Courts (Oxford: Hart, 1997)Google Scholar
Fatima, Shaheed, Using International Law in Domestic Courts (Oxford: Hart, 2006)Google Scholar
Palmer, E., Judicial Review, Socio-economic Rights and the Human Rights Act (Oxford: Hart, 2007)Google Scholar
Fredman, S., ‘Social, Economic, and Cultural Rights’ in Feldman, D. (ed.), English Public Law (Oxford: Oxford University Press, 2004), pp. 529–579Google Scholar
Laski, H. J., ‘Judicial Review of Social Policy in England’, Harvard Law Review, Vol. 39, No. 7 (1925–26), pp. 832–848CrossRefGoogle Scholar
Griffith, J., The Politics of the Judiciary, 5th edition (London: Fontana Press, 1997)Google Scholar
Griffith, John, ‘The Political Constitution’, Modern Law Review, Vol. 42, No. 1 (1979), pp. 1–21CrossRefGoogle Scholar
Tomkins, A., Our Republican Constitution (Oxford: Hart, 2005)Google Scholar
Cranston, R., Legal Foundations of the Welfare State (London: Butterworths, 1985)Google Scholar
Harlow, C. and Rawlings, R., Law and Administration, 2nd edition (London: Butterworths, 1997), pp. 472–494Google Scholar
Neill, P., Administrative Justice: Some Necessary Reforms (A Report of the Committee of the JUSTICE-All Souls Review of Administrative Law in the United Kingdom) (Oxford: Clarendon Press, 1988)Google Scholar
Street, H., Justice in the Welfare State, 2nd edition (London: Steven and Sons, 1975)Google Scholar
Baldwin, J., Wikeley, N. and Young, R., Judging Social Security: The Adjudication of Claims for Benefit in Britain (Oxford: Clarendon Press, 1992)Google Scholar
Robson, P., ‘Judicial Review and Social Security’ in Buck, T. (ed.), Judicial Review and Social Welfare (London: Pinter, 1998), pp. 90–113, at p. 100Google Scholar
,Department of Constitutional Affairs, Transforming Public Services: Complaints, Redress, and Tribunals (London: HMSO, 2004)Google Scholar
Clements, L., Community Care and the Law, 3rd edition (London: LAG, 2004), pp. 497–517Google Scholar
Genn, H. and Genn, Y., The Effectiveness of Representation at Tribunals (London: Lord Chancellor's Department, 1989), p. 107Google Scholar
Genn, H., Lever, B. and Gray, L., Tribunals for Diverse Users (London: Department of Constitutional Affairs, 2006)Google Scholar
Wade, W. and Forsyth, C., Administrative Law, 5th Ed, (Cambridge: Cambridge University Press, 2004), p. 908.Google Scholar
Seneviratne, M., Ombudsmen: Public Services and Administrative Justice (London: Butterworths, 2002)Google Scholar
Kirkham, R., ‘Auditing by Stealth? Special Reports and the Ombudsman’, Public Law [2005], pp. 740–748, at 747–748Google Scholar
Cowan, D. and Halliday, S., The Appeal of Internal Review: Law, Administrative Justice and the (non) emergence of disputes (Oxford: Hart, 2003)Google Scholar
,The Law Commission, Housing: Proportionate Dispute Resolution: The Role of Tribunals (London: Law Commission, 2008) (Law Comm No. 309)Google Scholar
Palmer, E., ‘Resource Allocation, Welfare Rights – Mapping the Boundaries of Judicial Control in Public Administrative Law’, Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp. 63–88CrossRefGoogle Scholar
Ewing, K. D., ‘Social Rights and Constitutional Law’, Public Law [1999], pp. 104–123Google Scholar
Ewing, K. D., ‘The Case for Social Rights’ in Campbell, Tom, Goldsworthy, Jeffrey and Stone, Adrienne, Protecting Human Rights Instruments and Institutions (Oxford: Oxford University Press, 2003), pp. 323–337CrossRefGoogle Scholar
Chamberlain, Martin, ‘Democracy and Deference in Resource Allocation Cases: A Riposte to Lord Hoffmann’, Judicial Review, Vol. 8, No. 1 [2003], pp. 12–20CrossRefGoogle Scholar
King, J. A., ‘The Justiciability of Resource Allocation’, Modern Law Review, Vol. 70 (2007), pp. 197–224CrossRefGoogle Scholar
Wesson, M., ‘Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court’, South African Journal on Human Rights, Vol. 20, No. 2 (2004) pp. 284–308CrossRefGoogle Scholar
Syrett, K., ‘Impotence or Importance? Judicial Review in an Era of Explicit NHS Rationing’, Modern Law Review, Vol. 67, No. 2 (2004), pp. 289–304CrossRefGoogle ScholarPubMed
Palmer, E. and Sunkin, M., ‘Needs: Resources and Abhorrent Choices’, Modern Law Review, Vol. 61, No. 3 (1998), pp. 401–414CrossRefGoogle Scholar
Seur, A. and Sunkin, M., Public Law (London: Longman, 1997)Google Scholar
Callaghan, C., ‘What is a “Target Duty”?’, Judicial Review, Vol. 5, No. 3 [2000], pp. 184–187CrossRefGoogle Scholar
Clements, L., ‘The Collapsing Duty: A Sideways Look at Community Care and Public Law’, Judicial Review, Vol. 2, No. 3 [1997], pp. 162–165.CrossRefGoogle Scholar
Palmer, E., ‘Courts, Resources and the HRA: Reading section 17 of the Children Act 1989 Compatibly with Article 8 ECHR’, European Human Rights Law Review, Vol. 8, No. 3 (2003), pp. 308–324Google Scholar
Craig, Paul, ‘Contracting Out, the Human Rights Act and the Scope of Judicial Review’, Law Quarterly Review, Vol. 118 (2002), pp. 551–568Google Scholar
Palmer, S., ‘Public, Private and the Human Rights Act 1998: An Ideological Divide,’ Cambridge Law Journal, Vol. 66 No. 3 (2007), pp. 559–573CrossRefGoogle Scholar
O'Sullivan, D., ‘The Allocation of Scarce Resources and the Right to Life Under the European Convention on Human Rights’, Public Law [1998], pp. 389–395Google Scholar
Laws, J., ‘The Limitations of Human Rights’, Public Law [1998], pp. 254–265Google Scholar
Pannick, D., ‘Principles of Interpretation of Convention rights under the Human Rights Act and the Discretionary Area of Judgment’, Public Law [1998], pp. 545–551, at 550Google Scholar
Fredman, S., ‘Positive Rights Transformed: Positive Duties and Positive Rights’, Public Law [2006], pp. 498–520Google Scholar
Palmer, S., ‘A Wrong Turning: Article 3 ECHR and Proportionality’, Cambridge Law Journal, Vol. 65, No. 2 (2006), pp. 438–451CrossRefGoogle Scholar
Loveland, I., ‘Does Homelessness Decision-Making Engage Article 6(1) of the European Convention on Human Rights’, European Human Rights Law Review, Vol. 2, No. 2 (2003), pp. 177–204Google Scholar
Loveland, I., Housing Homeless Persons (Oxford: Clarendon Press, 1995)Google Scholar
Wadham, J., Mountfield, H. and Edmundson, A., Blackstone's Guide to the Human Rights Act 1998, 3rd edition (Oxford: Oxford University Press, 2003), p. 117Google Scholar
Bueren, G., ‘Including the Excluded: The Case for an Economic, Social and Cultural Human Rights Act’, Public Law [2002], pp. 456–472Google Scholar
,Ministry of Justice, The Governance of Britain, (London: HMSO, 2007), para. 204Google Scholar
,Report of the JUSTICE Constitution Committee, A British Bill of Rights: Informing the Debate (London: Justice, 2007), paras. 90–111Google Scholar
Bogdanor, V., Khaitan, T. and Vogenauer, S., ‘Should Britain Have a Written Constitution?’, The Political Quarterly (2007), Vol. 78, No.4, pp. 499–517, esp. at p. 516CrossRefGoogle Scholar

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