Judges Make Law

To what extent in practice, however do the judges have the potential for creating law?

The traditional view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. There are now opportunities that Judges do make the law or influence it, and these are through separation of powers, Judicial Precedent, cases and statutes.

The Separation of Powers is a concept of government whereby power is divided among the executive, judicial, and legislative bodies. The executive represents the government the police and civil servants; the legislative power is parliament; and the judicial authority is made by the judges. This is so that one central system doesn’t have all the power. ”There is in any case, high judicial authority for claiming that the separation of powers is an essential element in the constitution of the UK. R v Hinds 1, where the appellant, brandishes a gun, ordered ambulance personnel surrounding the entrance to an ambulance to move. He then shot a man who was lying on a stretcher.

Let’s critically consider Judicial Precedent and how that amounts to judges making the law or just merely applying it. Case law comes from the decision made by judges in the cases they try, the decision is known as the judgement. The legal principle on which judges base their decision on is the ratio decidendi, Latin for the ‘reason for the deciding’. That part of the judgement is binding precedent and must be followed in cases with similar facts. When judges reach a decision they may have to refer to the obiter dicta ‘things said by the way’ though not binding can still be used as persuasive precedent

The House of Lords is the most senior court in the UK, and it binds all UK courts. However since the Lord Chancellor’s Practice Statement 2 says that the House of Lords can depart from it own previous decision. A leading case to illustrate this is R v R 3 where rape within a marriage is a crime.

However the House of Lords will not always use the practice Direction. In C v DPP 4 they considered the law on child criminals. They refused to change the law as they felt if a change was required it was best left to parliament to decide. The use of this Practice Statement could therefore give judges the opportunity to make Law

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The Court of Appeal has a more limited ability to be creative as they are generally bound by their own previous decision. There are however exceptions to this, when there is a conflicting decision in the House of Lords, the previous decision was made in unawareness of the relevant law and there are two conflicting previous decisions. This is laid down in Young v Bristol Aeroplane Co Ltd 5 the court here can refuse to follow its own earlier decision where it feels the decision to have been made wrong.

There are certain situations were judges can avoid awkward precedent by distinguishing on the facts. In Elliot and Quinn 6 “where the facts of the case before the judge are significantly different from those of the earlier ones, then the judge distinguishes the two cases and need not follow the earlier one.” Often judges distinguish on narrow grounds to avoid precedent.

Higher courts can also reverse and overrule lower courts decisions. Reversing occurs where a case is appealed and the higher court changes the decision. This then sets a new precedent. For example, Fitzpatrick v Sterling Housing Association Ltd 7

Where the House of Lords overruled the Court of Appeal and stated that a same-sex partner can inherit a tenancy. Overruling occurs where a judge in a higher court decides that he is not going to follow the precedent set in an earlier case by a lower court. This type of situation is rarely used because it weakens the influence and respect of the lower courts.

Where there are new cases judges have no option but to be creative when deciding the outcome as there is no previous precedent. In Gillick v West Norfolk and Wisbech Health Authority 8 In this case as there were no previous decisions by Parliament, the judges had to make up a decision and here it is clear that in cases like these they make the law. “The House of Lords held that, by a majority of three to two that a girl under 16 did not have to have parental consent if she was mature enough to make up her own mind”.

Another example where judges have decided the law on new cases where Parliament has not debated on is Airedale NHS v Bland 9, where Tony Bland was in comma after the Hillsborough stadium disaster. The court had to decide whether to turn off the life support machine or not. Here the judges had to make the law and had decided to turn off the machine as it was in the patients best interest.

When it comes to interpreting statutes, the judges will use one of the three rules on interpretation to work out what Parliament meant and then apply it to the case. The first rule is the literal rule; it fits in with parliamentary sovereignty where parliament being elected is the supreme law makers. The judges not have been elected are therefore doing what parliament intended. An example of the literal rule is in the case of Whitely v Chappell 10, In this case the court held that on a literal interpretation of the words of the particular legislation, Whitely could not be convicted of impersonating “any person entitled to vote at an election”, as the person he had impersonated was dead.

The second rule is the Golden rule, where if the judge feels that the literal rule gives an absurd result which parliament could not have intended then they would apply the golden rule. A case illustrating this is Maddox v Storer 11, where it was an offence under the Road Traffic Act 1960, to drive more than 30mph in a vehicle adapted to carry more than seven passengers, in this case it was a minibus made to carry 11 passengers. The court held that ‘adapted to’ could be taken to mean ‘suitable for’.

If however judges went on to apply the mischief rule the outcome may well be different. Under this rule the judges consider why the law was passed, in other words what mischief was it trying to remedy. A case that shows this is Smith v Hughes 12, where it was a criminal offence to solicit customers “in a street” this was against The Street Offence Act 1959. The problem here was that the judges had to decide what parliament meant when they said “in a street”. The judges had decided that even if the women weren’t in a street solicitation had taken place.

Footnotes

R v Hinds [1979] Crim LR 111
Practice Statement [1966] 3 All ER 77
R v R [1992] 1 AC 599
C v DPP [1994] 3 WLR 888
Young v Bristol Aeroplane Co Ltd [1946] AC 163, [1944] KB 718 13
Catherine Elliot and Frances Quinn, ‘The English Legal System’ (7th Editions, Published in 2006, Pearson Educated Limited)
Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] 3 All ER 402.
Airedale NHS v Bland [1993] 2 WLR 316
Whitely v Chappell (1868) L.R. 4 Q.B. 147
Maddox v Storer [1963] 1 QBD 451
Smith v Hughes [1960] 2 All E.R. 859

Bibliography

Gary Slapper and David Kelly ‘The English Legal System’ (9th Edition, Published in 2009, Routledge-Cavendish) 32-33
- Accessed on 2rd Novmber 2008 at 11:00pm
Alisdair A. Gillespie ‘The English Legal System’ (Published in 2007. Oxford University Press) 160-160
227-228 Accessed on 3rd November 2008 at 6:20pm
Catherine Elliot and Frances Quinn, ‘The English Legal System’ (7th Editions, Published in 2006, Pearson Educated Limited) 13-13
Catherine Elliot and Frances Quinn, ‘The English Legal System’ (7th Editions, Published in 2006, Pearson Educated Limited) 16-16
Gary Slapper and David Kelly ‘The English Legal System’ (9th Edition, Published in 2009, Routledge-Cavendish) 48-49
Catherine Elliot and Frances Quinn, ‘The English Legal System’ (7th Editions, Published in 2006, Pearson Educated Limited) 25-25
Accessed on 6th November 2008 at 5:30pm
Accessed on 6th November 2008 at 5:30pm
Accessed on 7th November 2008 at 10:40 am
Accessed on 6th November 2008 at 6:30pm