Introduction

While the interplay between ss.3 and 4 of the HRA provides the most obvious examples of judicial engagement with law-making – both directly via s.3 and indirectly via the legislative adoption of a court's reading of compatibility – it is by no means the only way in which the courts might play a distinctive role in the development of legal norms in human rights adjudication. While the judicial role in developing the common law has long been acknowledged, the HRA provides an additional creative impetus to reshape established causes of action at common law in the name of achieving Convention compatibility. Less pronounced, but by no means less significant for the protection of human rights within the constitution, is the potential for judges to influence the meaning and scope of the Convention rights as given effect in domestic law. Each will be examined in turn.

The incremental nature of common law development

The historical tradition of substantive formalism in statutory interpretation – and the rigid demarcation of legislative functions as parliamentary matters to which it gave rise – appeared to place strict limitations on the creative powers of the courts. Even in the context of common law adjudication – perceived more properly as the domain of the judges – such was the influence of this aspect of legislative sovereignty theory that the illusion persisted that the judges did not create the law, they declared it. By the 1970s, Lord Reid was prepared to explode the myth: