INTRODUCTION After the adoption in 1948 of the Universal Declaration of Human Rights (‘UDHR’), which included a relatively full catalogue of human rights, the UN General Assembly instructed the Commission on Human Rights to commence the drafting of a single covenant on human rights. While the drafting of a treaty covering civil and political rights was completed in short time, disagreement over whether to include economic, social and cultural rights led the Economic and Social Council (‘ECOSOC’) to request guidance from the General Assembly. The General Assembly initially ordered the Commission to produce one covenant but later reversed its position due to mediocre drafting progress, further prompting from ECOSOC and opposition of some Western States to economic, social and cultural rights. In 1966, it approved the adoption of two Covenants: the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (the ‘Covenant’ or ‘ICESCR’), the latter lacking a complaints mechanism. Two decades after this schism, the ‘renaissance’ of economic, social and cultural rights (‘ESC rights’) is partly attributable to the pioneering work of the UN Committee on Economic, Social and Cultural Rights (‘the Committee’). Established in 1987, the Committee has developed a ‘jurisprudence’ through its general comments and State-specific concluding observations. This work has been influential and catalytic in helping develop the conceptual framework of economic, social and cultural rights.

Social Rights Jurisprudence: Committee on Economic, Social and Cultural Rights

This dissertation investigates the effects of amendments to Ontario’s Rules of Civil Procedure that came into effect on January 1, 2010 (the “2010 Amendments”) and were subject to interpretation by the Supreme Court of Canada in a 2014 decision (“Hryniak”). Hryniak concerned summary judgment. However, the dissertation largely concentrates on the effects of Hryniak and the 2010 Amendments outside the summary judgment context, inquiring into whether Hryniak’s call for a “culture shift” and the 2010 Amendments’ enshrinement of the principle of proportionality have had noticeable effects. It does this by analyzing three aspects of Canadian procedural law that were not amended in 2010 but were amended (or enacted) shortly thereafter and can facilitate or hinder access to justice depending on how they are used: 1) jurisdiction motions; 2) dismissals without an oral hearing, potentially sua sponte; and 3) interlocutory appeals. This more quantitative analysis of case law was complemented by results of qualitative surveys of lawyers about their experiences with Hryniak and the 2010 Amendments. With regard to the three procedural rules analyzed, the dissertation makes suggestions for their re-interpretation to minimize unnecessary interlocutory wrangling. At a broader level, the dissertation concludes that there have been positive effects of Hryniak and the 2010 Amendments, but they have been limited, and tend to have been greatest in areas where tailored amendments in procedural law have occurred rather than in response to broader statements that a “culture shift” is required in the conduct of litigation. In any event, more work is required outside the realm of civil procedure reform to effectively improve access to civil justice in Canada.

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Hryniak, the 2010 Amendments, and the First Stages of a Culture Shift?: The Evolution of Ontario Civil Procedure in the 2010s

Part I. Introduction: 1. Introduction 2. What is health law? 3. What is European Union health law? Part II. EU Internal Health Law: The Individual Focus: 4. Consumerism: the moving patient 5. Consumerism: the moving health product or service 6. Consumerism: the moving health care professional 7. Rights: health rights as human rights 8. Rights: mobile patients' rights as human rights Part III. EU Internal Health Law: The Systemic Focus: 9. Competition, solidarity, equality: health insurance 10. Competition, solidarity, equality: health institutions and professions 11. Competition, solidarity, equality: the pharmaceuticals, medical devices and medical equipment industries 12. Risk: clinical trials 13. Risk: health system products - pharmaceuticals 14. Risk: health system products - human blood, tissue and cells, organs medical devices 15. Risk: tobacco, food, alcohol Part IV. EU External Health Law: 16. The global context: institutions and instruments 17. The global context: consumerism, rights, justice and equality: human organs and access to essential medicines 18. The global context: opportunities and threats: health knowledge, communicable diseases, global food and tobacco law Part V. Conclusions: 19. Conclusion.

European Union Health Law: Themes and Implications

The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR). This article critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the International Covenant on Civil and Political Rights (ICCPR), so the doctrine should be applied by the Human Rights Committee.

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A defence of the margin of appreciation and an argument for its application by the human rights committee

This thesis addresses the long-debated question of courts’ proper role in enforcing constitutional social rights; and it does so from a new perspective – that of political trust. Its central argument is that the concept of political trust – as it has been conceptualised and theorised in the relevant social science literature – has normative potential for defining such a role for courts. Specifically, I argue that courts, in enforcing constitutional social rights, can, and should, use political trust as an adjudicative tool, employing it to develop a standard to which government, in its provision of social goods and services to the public, can and will be held. To make out this argument, I draw on both theoretical and empirical social science scholarship on trust and how it functions in contemporary societies. I suggest, based on that scholarship, that we can expect constitutional social rights adjudication by courts to be able to impact (and in the right circumstances, to foster) political trust. And following from this impact, in combination with the well-recognised value of political trust by social scientists as well as a host of other principled reasons, I make the claim that political trust can, and should, lie at the very centre of social rights enforcement by courts.

Political trust and the enforcement of constitutional social rights

1. Aims and methods Part I. The Case for Constitutional Social Rights: 2. The case for social rights 3. The value of courts in light of the alternatives 4. A basic interpretive approach Part II. A Theory of Judicial Restraint: 5. Institutional approaches to judicial restraint 6. Democratic legitimacy 7. Polycentricity 8. Expertise 9. Flexibility Part III. Incrementalism: 10. Incrementalism as a general theme.

Judging Social Rights

This article addresses the pressing issue of what process courts should use to identify those questions whose resolution lies beyond their appropriate capacity and legitimacy. The search for such a process is a basic constitutional problem that has defied a clear answer for well over a hundred years. The chequered history of earlier attempts illustrates why commentators have once again begun to gravitate towards institutional approaches. The general features of institutional approaches include emphasis on uncertainty, judicial fallibility, systemic impact, collaboration between branches of government and incrementalism in judging. These features, however, are relied upon in support of two conflicting views of the role of judges in public law adjudication. One is restrictive, and advocates sharp limitations to the ambit of judicial review. The other is contextual, and, in stark contrast, it proposes to expand the ambit of review in reliance on the idea of using principles of restraint to structure the exercise of judicial discretion. While this article does not take sides between them, it nonetheless seeks to refine the contextual institutional approach by outlining a general framework for reasoning with principles of restraint, and by addressing some of the key difficulties such a reasoning process would face.

Institutional Approaches to Judicial Restraint

A perennial problem in public law is how courts ought to deal with legal challenges to the allocation of public resources. This article explains and renders more coherent the varied approaches of English courts to the justiciability of resource allocation disputes in administrative and tort law. It draws a distinction between ‘discretionary allocative decision-making’ and ‘allocative impact.’ The non-justiciability doctrine in R v Cambridge Health Authority, ex p B is concerned with the former only. By contrast, allocative impact is a justiciable matter, but can still ultimately defeat a claim. This distinction, however, does not guide judicial approaches under the Human Rights Act 1998, where courts have chosen mostly to eschew the non-justiciability doctrine in favour of more flexibly applied notions of judicial deference. Thus while the non-justiciability doctrine has a relatively narrow scope in administrative and tort law, it has nearly disappeared under human rights law.

The Justiciability of Resource Allocation

Lon Fuller's claim that polycentric disputes are unsuitable for adjudication has had a powerful impact on the English law of justiciability. Fuller conceded, as many have noted, that polycentricity is a matter of degree and that counter-examples can be admitted without collapsing the concept. But this article suggests that not only do counter-examples exist, but that the law is rife with them, and that the existence of such examples forces us to refine or reject Fuller's doctrine. The issue is important because the argument that polycentric issues are non-justiciable is most frequently raised in the context of resource allocation disputes. Such disputes frequently involve claims to health, education, social security or housing resources. As such, they often concern internationally recognised human rights claims of the highest order. But many say that social rights should not be legal rights because they would require judges to adjudicate polycentric disputes. This article suggests we need to reconsider this objection. It shows how polycentricity is a pervasive feature of adjudication, discussing a number of examples but choosing to focus principally on an area that is infrequently discussed in public law - the law of taxation. It is shown that tax law is heavily polycentric but that there is an accepted role for courts in protecting citizens against the spectre of unfettered public power. Demonstrating the pervasiveness of polycentricity does not alone make the case for rejecting the wisdom of Fuller's doctrine, a good deal of which appears sound. But it helps illuminate both how the concept is invoked selectively, and how it cannot without further refinement be relied upon to justify judicial restraint.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=1027625

The Pervasiveness of Polycentricity

Chaoulli v Quebec (AG) may be the most controversial Supreme Court of Canada decision to date The Court used social science evidence of foreign health care systems to justify its finding that a provincial ban on private health care insurance unjustifiably violated the right to security of the person The decision could lead to fundamental structural changes in the way Canadian provinces deliver health care services Given the importance of Charter jurisprudence in the United Kingdom, and recent debate about the wisdom of incorporating social rights, the case raises a number of pertinent issues for British lawyers This comment advances two general arguments First, that the case was wrongly decided because of its poor characterisation of the legislative objective of the ban, unprincipled approach to judicial deference, and poor treatment of expert and social science evidence Second, far from justifying suspicion of constitutional social rights, the case illustrates precisely why such rights can make a positive difference

Jeff King

Papers

Judging Social Rights

Institutional Approaches to Judicial Restraint

The Justiciability of Resource Allocation

The Pervasiveness of Polycentricity

Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision