Interpretation of statute or
delegated legislation creates law
Example of case that by
interpreting statutes in a broad way have created the legal position
that was not necessarily foreseen by Parliament.
R v Brown & Others
R v Brown & Others
concerned sado-masochistic sex and raised
the question of whether
consensual assault amount to a crime under Offences Against the Person
Act 1861 or common law?
did not deal with consent, and at common law consent was a defence to
thought the precedents cited were not conclusive and said it is a matter
for the legislature to decide, in other words it was such an important
issue that Parliament should decide.
Mustill said if the level of harm amounted to assault regardless of
consent then it would need to be considered whether private sexual
activities should be exempt, this was for Parliament to decide, it was a
task which the courts are not suited to perform
3 judges thought the courts should intervene to protect society as a
whole; pleasure derived from pain was evil.
Distinguishing as law making
Distinguishing a precedent
effectively amends the law by narrowing the scope of the earlier rule.
Sometimes it is based on very dubious distinctions, the following are well
Departing as law making
The House of Lords faced with
an inconvenient precedent can simply depart from it under the terms of the
1966 Practice Statement.
The following are examples where the House of Lords
has done just this:
Hall v Simons (2000) HL
The 1966 Practice Statement itself is
an example of judicial law making
Equity as law making
Judges can develop or
"discover" new equitable remedies. Lord Denning was remarked in
Eves that "equity is not past the age of childbearing"
Inherent jurisdiction and law
"Inherent jurisdiction" relies
on ancient powers as representatives of the sovereign exercising the
Prerogative. E.g. supervising inferior courts and tribunals, ensuring
natural justice is and wardship family law
In the 1960s - as guardians of
the nation's morals -the courts created new crimes but this particular power is no
Professor Michael Freeman
in ‘Standards of Adjudication, Judicial Law’ 1973
described different judicial styles
The Court in
Morgans v Lauchbury
 decided that an injured person could not
sue a wife whose husband had taken her car, with permission, and then
loaned it to a third person who caused an accident, the House of Lords
refused on invitation to introduce a new rule allowing the action to
proposed development constitutes such a radical and far-reaching
departure from accepted principle that it seems to me to smack of naked
In Myers v
DPP  the House of Lords refused to relax the hearsay rule to allow the evidence of
numbers fixed to cars to prove that they had been stolen
‘...it had been decided eighty years ago
evidence was inadmissible)...’
Lord Hodson said;
‘...would be judicial
legislation with a vengeance...’
Advocating legislation in
giving his judgement Lord Reid said;
‘...there are limits...If an exception was created here, others should
be created, and there would be a series of appeals...it seems to me to
be against public policy to produce
cases with similar facts, the first being
Shaw v DPP  the House
of Lords in effect invented a new offence of
conspiracy to corrupt public morals.
DPP  the law lords went further and recognised another offence - of
conspiracy to outrage public decency.
involved small ads by homosexuals in the International Times.
Knuller case, Professor
Freeman expressed his distaste for this
form of ‘judicial law making at its worst.’
To Freeman it lacks
historical context, is hypocritical and he believes that four of the law
lords tied themselves in knots trying to rationalise their arguments.
only did it add uncertainty to the criminal law it flew in the face
of legislative policy (The Obscene Publications Act 1959), and ministerial
assurance (House of Commons, Hansard vol 695 col. 1212 3 June
It endorsed the values of certain sectional interest and flouted others.
It did not embody the compromise that consensus demands in a democratic
British Railways Board v. Herrington  The House of Lords
overruled its own earlier decision in
Addie v Dumbreck
unanimously deciding that there could be liability to a trespasser.
Unfortunately five judges reached that decision in different ways and the
matter was referred to the Law Commission, and eventually the passing of
the Occupier’s Liability Act 1984 that now governs the position of
trespassers and certain other non-visitors.
House of Lords refused to rule
contrary to Human Rights law
29 November 2007
The House of Lords Judicial Committee dismissed the case brought by the
Countryside Alliance which challenged to the lawfulness of
The Countryside Alliance that brought the action claimed the Act violated
the fundamental human rights of thousands of people whose livelihood and
way of life. Between 6,000 and 8,000 were expected eventually to lose
their jobs, and many would also lose the homes that went with the jobs.
Others would lose businesses and the commercial "goodwill" attached to
In the ruling, Lord Bingham said the law had been drawn up and
passed in line with the constitution and should not be undone by an
"The democratic process is liable to be
subverted if, on a question of moral and political judgment, opponents
of the act achieve through the courts what they could not achieve in
In the leading opinion given by the senior Law Lord, Lord Bingham
said, that the
2004 must “be taken to reflect the
conscience of a majority of the nation. He also said,
“ … the present case seems to me
pre-eminently one in which respect should be shown to what the House of
The decision was a unanimous ruling by five Law Lords.
It is the second time an appeal against the Act has been rejected. (The
previous attempt failed to satisfy the Lords that the ban was illegal
because the Act had been passed using the Parliament Act without the
consent of the House of Lords).
American legal realism
American jurist Oliver Wendell Holmes (1841-1935) discussed law from the
point of view of "the bad man", who had no interest in axioms or
deductions but simply wanted a prediction of what the court would do in
any particular case.
cases this is straightforward, of course, and the court is virtually
certain (barring a sudden attack of insanity) to decide a particular way.
matters to the "bad man" is to know whether he will win or lose, and what
the effects on him are likely to be.
Llewellyn (1893-1962) described law as "what officials do about disputes",
and insisted that law should be evaluated in terms of its effects.
The claim that judges use the
rules to rationalise their intuitive decisions is borne out by some of the
judgments of Lord Denning.
His concern, he said, was to do justice in the case before him, and if
that required a creative interpretation of existing rules, so be it.
Equity was a particularly fruitful field for his creative efforts, and a
number of cases are discussed above.
Advantages and disadvantages
Who leads, society, the courts
How does the law reflect social
change? Should society lead and the law follow or the other way round?
example, homosexuality, prostitution, use of cannabis. As society changes
and becomes more tolerant the law is eventually changed to reflect this.
It can be
argued this should be left to Parliament but this is a lengthy process and
the courts can develop the common law to meet changing conditions more
technology leads to new problems, case law responds to such changes as
they occur whereas Parliament considers what may happen and
legislates for the future.
Judges and the future
Judges can respond immediately
unlike conventional legislators, they do not have to predict in advance
the different combinations of facts that might occur
The possibility of unlimited
growth to meet novel situations that could not have been foreseen
Bellinger v Bellinger  CA
Browne-Wilkinson said the ability to sustain life artificially was of
recent origin, and existing law may not provide an acceptable answer to
the new legal questions it raised.
judges seek to develop new law to meet a wholly new situation?
He had no
doubt it was for Parliament.
Judicial decisions made on limited
is made "in haste", without regard to wider implications.
commonly give decisions on the spot and only rarely take time for
have to rely on the evidence and arguments presented to them in court, and
do not have access to wider evidence (e.g. statistical data, economic
forecasts or public opinion surveys)
Judges and Parliament
Judges can act when Parliament
is unwilling or unable
Parliament should find
the time rather than allowing an obviously unjust situation to continue.
However, it is only possible in
matters of common law or statutory interpretation. Judges cannot set aside
the clear words of a statute however unjust it may be.
Judges out of touch
Judges are unrepresentative of the people white males from higher-class
The democratic mandate
Judges have not been elected to
no democratic mandate, and they should not be asked to make essentially
political decisions where the law is unclear.
should certainly not seek to use their position to frustrate the wishes of
the elected government.