How effectively does the judiciary protect civil liberties? Critics of the judiciaries existing powers argue they are too weak, with the uncodified nature of the British Constitution not lending itself to the protection of civil liberties. They take the view that there is too much power vested in the Executive, leaving civil liberties vulnerable to erosion by elective dictatorship. Supporters of the entrenched bill of rights see incorporation of the ECHR in the form of the HRA as empowering the judiciary. While critics see this as no panacea.
Firstly, most of the rights in the convention are not absolute, as the state is able to legitimately interfere in pursuit of a `legitimate' aim. However, there are also some advantages. Restrictions have to be `necessary in a democratic society' and proportionate. In the Golder case the citizen won, as the state could not establish the rules limiting prisoners' access to solicitor was `necessary' in preventing crime. Secondly, the problems associated with the sovereignty of Parliament remain. If a judges `whistle blowing' powers do not produce a Parliamentary retraction then the offending legislation is still implemented.
The last shortcoming is the limited scope of rights protected. Critics see a need for an entrenched bill of rights, protected not be the Parliament, but the judiciary. In fact, the British Judiciary is not as impotent at preserving civil liberties as traditionally portrayed. The courts power of interpreting statute law and applying it to circumstances unforeseen by political parties both challenge the view that the judiciary's role is simple mechanical and straightforward. Judges can engage in literal interpretation, having regard to the `ordinary' meanings of words, leaving cases up to discretion when there is a lack of clarity.
Sovereignty of Parliament does not mean the subordination of the judiciary. Courts retain the power of judicial review, being able to declare their actions ultra vires. There has been less judicial restraint since the mid-1960's when the Law Lords shifted from a concern to be consistent to a more flexible concern to be fair. This judicial activism has allowed them to act as a check on the Executive in reaction to the failings of Parliament. The Foreign
Secretary's actions in the Pergan Dam affair were seen as ultra vires. British membership of the EU has increased the powers of judicial review available to the courts, first highlighted in the Merchant Shipping Act 1938, which was deemed unlawful. Rather than seeing the courts as part of the solution, critics such as Griffith, claim they are part of the problem. Senior judges, he contends, by their education and training have acquired a homogenous collection of attitudes that favour the state to the individual. However, for every judgement of class bias, another can be producedforming an alternative explanation.
Coming from a particular background does not necessarily indicate a system of beliefs, while social origins is a remote influence. The second mistaken assumption he makes is that all judges agree with each other, in favour of the forces of Conservatism. In reality, of the role of the judiciary in protecting civil liberties is more complimentary than Griffith thinks. The judiciary, through its newfound `activism' has proved itself on occasion to be an effective check against `elective dictatorship' and a guardian of civil liberties.