The traditional Diceyan view was that the role of the judges is to protect civil liberties and human rights through the common law, and by judicial interpretation. Dicey placed great emphasis on the fact that there was no need for a formal document laying down the rights of the individual, as the remedies of private law provided adequate protection. His view was backed up by the classic decision in Entick v Carrington, where the courts reinforced the rights of the individual against the state. However, the courts have not always been so zealous in defending rights and liberties, as cases such as Malone indicate. Nevertheless, when the Human Rights Act 1998 was passed, the courts were again given a special role with regard to protecting human rights.
According to section 2 (1) (a) of the Human Rights Act, when determining a question relating to a Convention right, a national court must take into account any judgement or decision of the European Court of Human Rights, so far as it is relevant to the facts of the case.
More importantly, section 3 (1) provides that "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights." This places a duty on the courts to interpret legislation in a manner which is consistent with the Convention. However, the courts have no power to legislate themselves, and s.3 (2) goes on to state that this power does not affect the validity of legislation. Therefore, a measure of Parliamentary sovereignty is retained.
In approaching their duty under s.3, the courts have taken a three stage approach. First, the statute is scrutinized in order to determine whether it is compatible with Convention rights. If it is, then...