The myth that judges interpret and do not legislate has been shattered by the passage of the Human Rights Act 1998 and subsequent case law

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‘The myth that judges interpret and do not legislate has been shattered by the passage of the Human Rights Act 1998 and subsequent case law.’

Critically discuss this statement with particular reference to parts B and C of the module.

To discuss and analyse the judiciary’s role as interpreter and how they go beyond their role and can be seen as legislators, in order to see if the myth of interpretation has been shattered, many concepts need to be considered. These include the separation of powers in the United Kingdom, the Doctrine of Precedent, the effects of the passage of the Human Rights Act 1998 and other case law.

The constitutional role of the judiciary is to interpret legislation and apply law, and Parliament has the role of the legislator, as Parliament has the highest authority and sovereignty. Thus meaning the power of Parliament as the legislature, the power of the executive as implementer and the interpretative role of the judiciary to apply and interpret law, are all separated in an equal balance. (Slapper and Kelly: 2001).   However the judiciary are able to use their own discretion when interpreting and can often go beyond their role as interpreters and inevitably legislate, often by amending a statute. In the United Kingdom there is a movement towards having a separation of powers, but these powers often overlap; in relation to judicial powers they can often be extended to the judiciary having legislative powers, thus damaging the impartiality and transparency of the judiciary.

There are two approaches to statutory interpretation, which enable us to see the will of Parliament in the passing of an Act. Firstly the literal approach, which involves looking at the words in a statute in order to interpret its meaning. This rule therefore does not give the judiciary much flexibility, thus making them more likely to interpret rather than legislate. Whereas the Purposive approach suggests that judges should look beyond the actual wording of a piece of legislation and look for the purpose of its enactment. (Slapper and Kelly: 20012). Thus the interpretation should be carried out with consideration to the purpose of a statute. In the case of Pepper v Hart [1993]3 Lord Griffiths describes statutory interpretation in a modern context,

“The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”

Lord Griffiths also states that the courts should look to Hansard in the discrepancy over the interpretation and legislative boundary, in order to ensure the judiciary does not cross this boundary. Although this approach seems to give the judiciary greater flexibility and is the type of approach most likely to lead to the judiciary legislating instead of interpreting.

There are three rules of statutory interpretation, which can also be used by the judiciary. The first is the literal rule, which involves the judge looking to the literal meaning of a piece of legislation involving what the statute actually states and not what it might mean. (Slapper and Kelly: 2001) 4. However this has caused great discrepancy in the past, which is shown in the R v Maginnis (1987) 5case, where the defendant was charged with the Misuse of Drugs Act (1987), with having drugs ‘with the intent to supply them’. However the defendant claimed he was not supplying the drugs, but giving them back to his friend. Thus the word ‘supply’ created great problems for the judges involved, as if they charged the defendant they would not have been using the literal meaning of the word and not looking to the original purpose of the Statutes enactment. (Slapper and Kelly: 2001) 6

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This displays how it is impossible for one word to have only one meaning, reflecting how the literal rule is not all that useful and effective for statutory interpretation. Similarly this reflects how a statute can go out of date, although the judiciary do not have the power to amend the statute, this must be done by Parliament. Therefore this shows how when judges interpret they are making new law, as they are often using a different interpretation of the statute’s words for different cases, depending on the context, even though the statute may be out of date.  This ...

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