"Looking at the rules alone is inadequate - It assumes that judges actually do adjudicate in the way in which the rules say they should" - Discuss with reference to the 'rules' and examples of the operation of precedent and statutory interpretation.

Fionntán Gamble

“Looking at the rules alone is inadequate. It assumes that judges actually do adjudicate in the way in which the rules say they should”. Discuss with reference to the ‘rules’ and examples of the operation of precedent and statutory interpretation.

The statement seems at first glance to offer a much generalised and often contested view of the separation of powers embodied in constitutional theory. That is to say that Parliament makes laws and the judiciary as slaves to the rules, should simply apply them to a particular case. This perhaps is what ‘ought’ to happen, according to the fundamental nature of rules and the impression that word ‘rule’ renders; i.e. that following a particular pattern cannot lead you astray. However the broader implications of this narrow position is that judge’s decisions are straightforward and mechanistic in appearance, which as we shall see in the operation of precedent and of statutory interpretation, could not be further from the truth.

The obvious starting point for this piece of writing is to state that the rules precedent ‘should’ be foolproof. After all, anything contrary to this would call into question Parliamentary Sovereignty and it’s competence in performing its legislative functions. But to submit to the assumption that judges adjudicate only according to the rules leaves us open to much criticism.

However practical and appealing, an approach of simply looking up the law and applying it, may be, it is important to understand that there are no fixed rules of law written in stone, like modern day commandments, which judges can simply draw authority from, and prescribe to a legal problem. Legal rules are composed by men and thus by their most fundamental orthodox, are flawed in some way due to man’s imperfectness. I.e. no matter how elaborately it is phrased, no legislator can hope to create a rule to cater for every possible situation arising for future consideration, and legislate to facilitate it. Even if they could, constraints upon draftsmen’s time amongst other factors such as the legal compatibility and legitimacy of the rules they are drafting for enactment, would prevent them from creating ‘all-embracing’ rules, which are perpetually concise and unambiguous. The English language itself cannot aid the draftsmen in this task, for its diverse etymology provides an inexact tool for achieving clarity of meaning and certainty. Due to the technical meaning of terms and their range of synonyms, the need for judicial interpretation is inescapable; human foresight and the English language cannot avoid the inevitable and it becomes evident that adjudicating purely in the way the rules intended is much more difficult in obeying than was originally assumed in our proposition.

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The intention of Parliament can be deduced from the long title of the Act, the state of the pre-existing law or the unambiguous effects of other provisions within the statute itself, however where there is clarity of meaning needed, interpreting Parliaments intentions lie within the ambit of judicial decision making. There are a range of analytical options open to a judge to achieve this. Statutes are drafted in such a way that the lifeblood of everyday speech is missing, leaving room for the judge to put his own flavour on their meaning, when they are unclear. Along with the various styles of interpretation open to a judge (formal or grand) there are also three ‘cannons of construction’ which one may find sheds light on the path in front of them. The literal rule, the golden rule and the mischief rule are simply tools of argument; approaches to interpretation which act as guides for judges to follow, in the same way that road signs help motorists to their destination. They are nothing more than techniques of reading documents and may be used singularly or combined.

When judges decide to re-interpret the wording of a statute they tend to follow the wording of it very closely: the literal approach:

“The role of the judiciary is confined to ascertaining from the words that parliament has approved as expressing its intention, what that intention was, and giving effect to it”.

The literal rule does not call upon the judge to consider the consequences of the interpretation, and therefore it is often felt that it doesn’t properly promote justice and fairness and actually produces absurd scenarios, as was demonstrated in R v Harris (1836) & C v P 446.

Some judges, (re; former Master of the Rolls, Lord Denning), have argued that they should be free to be more active, in that they should be able to examine not only the words of a statute but also the motives lying behind the statute.(purposive and mischief rules).

“The construction of a statute dealing with a morbid aspect of society must, it seems to me be pursued in the practical context of the evil sought to be remedied rather than with analytical detachment”.

These rules are perhaps adaptations of the literal rule, in that they look at the whole statute in its entire context to find an absurdity. A supporter of this approach though proves it is applied inconsistently.

Using these rules may involve the use of supplementary materials; notably Hansard, to examine parliamentary records of debates which preceded the law. A supporter of this view is Lord Denning who in Davis v Johnson (1979) commented:

“….some say judges should not pay any attention to what is said in Parliament…. they should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view…

Following on from this it is obvious that there is nothing preventing a judge privately seeking guidance from debates in Hansard, however the use of this additional tool of interpretation has been much debated, not least in Pepper(inspector of taxes) v Hart, the implications of which are beyond the scope of this piece of writing; suffice to say that, the consultation of /or reference to, Hansard in strict circumstances, has been increasingly contested and accusations of the judiciary ‘nakedly usurping’ the legislative role of parliament, have been aired non-exhaustively.

Therefore as regards adjudication it becomes clear that when applying the rules judges must take into account many factors in order to come to a satisfactory decision.

Judges therefore do not follow a critical path analysis, progressing from one rule of interpretation to another in uniform fashion. Judges are not robots; their personality affects the way in which they will approach a problem of interpretation and so the rules alone cannot tell them how to adjudicate.

As H.L.A Hart puts it:

“All rules have a penumbra of uncertainty where the judge must choose between alternatives”

In effect this claim validates judicial creativity/discretion, where a judge must choose between various interpretations of the rule in order to fill in the missing gaps. Thus he is coming to create Common Law, contrary to simply applying rules as the title would suggest.

Another arena in which the rules governing judicial interpretations are meant to show what judges ‘ought’ to do, is in the operation and effect of the doctrine of Precedent (Stare decisis-“stand by things that have been decided”). In theory this means that all lower courts are bound to follow higher court decision unless the previous decision can be distinguished, on merits of fact/law, from the case at hand. Some judges decide to adopt a grand style of interpretation in case law, taking a creative or flexible approach to precedent. Whereas others will adopt a more formal style facilitating rigid adherence to precedent.

The concept of stare decisis provides only the ground rules for the doctrine of precedent-it cannot tell when faced with apparently similar cases when it should apply. It is mostly just a logical starting point for any judge.

An initial observation of this doctrine is that it is restrictive to judicial decision making and its operation simplistic and conclusive. However more detailed investigation enables us to see that there are ways and circumstances in which a judge can deem him and the court not bound by precedent and is thus not simply adjudicating in the way the rules say he should. The House of Lords departed from tradition when Lord Gardener L.C in 1966 delivered a practice statement on judicial precedent 1 WLR 1234 -declaring the “House of Lords in exceptional cases may depart from its previous decisions”.

The rules of the doctrine point to all higher court decisions being binding on all lower courts however the Court of Appeal too can refuse to follow its previous decisions in three situations:

where there are in fact two such decisions in conflict
where the earlier court of appeal decision is inconsistent with a subsequent House of Lords decision
Where the earlier decision was announced without proper consideration given to the previous cases or statutes per incuriam.

Of course whether an earlier decision is wrong or not is a matter of opinion to a large extent, which underlines the fact that the doctrine of precedent is not always as limiting a constraint on the inventiveness of judges as might at first be imagined.

However if a judge is to ‘cast of the shackles of precedent’, binding him to a decision he must distinguish the problem at hand from the previous decision, which isn’t always easy. As with most problems there is a moral dilemma facing judges most of the time and with laws being based on moral principles a judge must tread carefully when dealing with precedent, so as not to affect social policy or stability.

“To some it will appear that justice is being denied by a timid conservative adherence to precedent. They would be wrong. Consistency is necessary to certainty-one of the great objectives of the law”.

Law is underpinned by as set of moral principles and it is quite clear that judges will not make decisions which will compromise these principles.

It is evident from the argument put forward above that the assumption made in the title that judges adjudicate according to strict adherence to the rules alone, is at best a naïve misconception and at worst a misshapen inaccuracy. To rely on the conventional rules of statutory interpretation and precedent alone could sometimes give us a distorted view of the judiciary’s role in the adjudication of law (as well as leading to unjust or absurd decisions as was seen in the Harris case), and would be to neglect the means of ancillary aids to construction which are at the disposal of judicial hands. No-one questions the use of the rules, indeed they can be very effective means to ends, but because there is a gradation among the categories, no fixed formula can be universally applied in the interpretation of statutes or in deciding cases, therefore it is logical to conclude that it would be foolish to simply adjudicate all the time in the way the rules say judges should

Bibliography

Dickson; Brice - the legal system of Northern Ireland

Holland; James A. and Webb; Julian S. - 5th edition-learning legal rules

Hart; H.L.A-The Concept of Law-Clarendon Press 1961

Bix; Brian-Jurisprudence Theory and Context- 3rd edition

(a 4th –compatibility can be construed from section 3 of the human rights act, which in essence grants judges law making powers)

Lord Diplock commenting in Duport steels Ltd v Sirs (1980):

Shaw LJ: BvB (849 e-f)

Lord Denning in Royal College of Nursing v DHSS 1981 1 ALL ER 545 decided to take the literal approach to justify his decision.

[1992] 3 WLR 1032

Hart-The Concept of Law, Clarendon Press 1961

re: Lord Denning MR, Shaw L.J, Sir George Baker; in Davis v Johnson declared themselves not bound by earlier decisions of the Court in B v B and Cantliff v Jenkins.

Cunning L.J Bruce in the above case deemed himself bound by the previous courts decision in respect of the two cases cited above.

Davis v Johnson 1978 1 ALL ER 1132

Farrell v Alexender 1976 Q.B 345 Scarman L.J commenting.