Introduction
25.1National legislation, and the common law, often afford the strongest protection for human rights and are all too often neglected as remedies for breaches of fundamental rights. In particular, the common law is often able to engage with the detail of the lawfulness or otherwise of the process by which state action threatens to infringe fundamental rights, in ways that more broadly expressed treaty-based principles cannot.
1Re Reilly’s Application for Judicial Review [2013] UKSC 61, [2014] AC 11115.25.2Nonetheless, international law plays an increasingly important role:
•when it has not been incorporated into national law it may inform the proper construction of legislation within its scope;
2Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 WLR 1275. •when it has been incorporated into national law it will generally prevail unless the situation is governed by national primary legislation but even then, international law may override primary legislation (in the case of EU law), or require it to be construed as far as possible so that it is compliant with the incorporated treaty (ECHR law);
•in addition, the general principles of international law, and international instruments, such as the UN Convention on the Rights of the Child (UNCRC) and the UN Convention on the Rights of Persons with Disabilities (UNCRPD), can percolate indirectly into national law
3In addition, some rules of customary international law are treated as forming part of the common law: Trendtex Trading v Bank of Nigeria [1977] 1 QB 529 at 553B–554H, 576G–H.as a result of the principle that the ECHR, and EU law, should in general be construed harmoniously with other relevant provisions of international law.
4A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221 at paras 27–29. 25.3When it comes to challenges to decisions involving the allocation of ‘scarce’ national resources, such as health or social care, the claimant is often better off relying on the common law, and public law supervision, in order to question the legality of the decision-making process. The European Court of Human Rights (ECtHR) does monitor procedures to some extent, in some cases,
5Tysiac v Poland (2007) 45 EHRR 42.but its tendency is generally to shy away from interfering with the allocation of health or social care resources.
6Pentiacova v Moldova (2005) 40 EHRR SE23.The common law seems more adept at examining whether, for example: (i) resources have been allocated in accordance with a published policy;
7R v North West Lancashire HA ex p A, D and G (1999) 2 CCLR 419.(ii) such a policy is vitiated by legal error, breach of the PSED or illogicality;
8R v North West Lancashire HA ex p A, D and G (1999) 2 CCLR 419.(iii) the decision-maker has failed properly to understand or implement such policy, or consider making an exception to it
9R v North West Lancashire HA ex p A, D and G (1999) 2 CCLR 419; R v North Derbyshire HA ex p Fisher (1997–8) 1 CCLR 150.– and so forth.
25.4International law has, however, been very effective in protecting core fundamental rights such as the right to personal liberty and freedom from inhuman and degrading treatment;
10Z v United Kingdom (2001) 4 CCLR 310.aiding challenges to the provision of health or social care that is discriminatory;
11Van Kuck v Germany (2005) 8 CCLR 121.and in changing the context of decision-making about vulnerable groups, such as children or disabled adults, so that their welfare is treated as a very important consideration throughout the process.
12E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [1009] 1 AC 536.There is a range of material on human rights in health and social care published by, among others: