Parliamentary sovereignty is crucial in the British Constitution. If judges were to create laws, they would be contradicting this doctrine. The courts’ power to review the validity of legislation is disqualified by legislative supremacy, as seen in the case of British Railway Board v Pickin. Judges are not meant to create laws; their role is to simply declare what the law has always been. Acts of Parliament hold the highest authority, and the courts are bound by them. However, through the doctrine of precedent, the judicial function of declaring and applying the law has a quasi-legislative effect.
The rules of precedent are judge made, unless a statute has intervened. In some cases, judges must determine a matter without any previous legal decision or law to guide them. This results in judges effectively creating law through original precedent. The doctrine of Precedent requires judges in a lower court to abide by a decision already made by a judge in a higher court. It is based on the principle of “stare decisis,” meaning to stand by what has been decided. To fulfill the requirements of the doctrine, the previous point must have been the “Ratio decidendi” or reasons for deciding.
The previous court must have been at a higher level than the present or at the same level. The remaining decisions are simply “obiter dicta” (things said by the way) and are not strictly binding but rather persuasive. Although the rules of precedent are applied rigidly and do not seem to allow room for creativity, there are ways in which the doctrine of precedent can be bypassed, thus enabling judges to establish new law. The 1966 Practice Statement grants the House of Lords the ability to “update” the law, thereby expanding the authority of the Law Lords to “create” law. The Court of Appeal is obligated to adhere to their previous rulings.
The principle in the case of Young v Bristol Aeroplane Co. Ltd outlines three exceptions to the general rule of not following previous decisions. The first exception applies when there are conflicting decisions in past Court of Appeal cases, allowing the court to choose which decision to follow and which one to ignore. The second exception occurs when a House of Lords (now Supreme Court) decision effectively overturns a Court of Appeal decision, requiring the Court of Appeal to comply with the House of Lords’ ruling. The final exception is if a decision was made per incuriam, meaning it was made without considering relevant law or facts, in which case it is not legally binding.
The Court of Appeal has been given limited powers to modify or establish laws, as indicated by the last exception. It is further divided into two divisions – criminal and civil. The criminal division has the ability to apply the exceptions derived from Young’s case. While it is not a common practice to utilize these exceptions, they do offer the Court the necessary flexibility. Any judge from any court can employ the method of distinguishing to avoid adhering to a previous decision. This allows the judge to view the material facts of the case as completely new and draw a differentiation between the present case and the precedent set by prior cases.
He is not bound by the previous case. A large portion of the law today is influenced by principles established by judges themselves. Judicial decisions strongly affect the law of contract, tort, and criminal law. For instance, an agreement without consideration is unenforceable, as seen in the case of Combe v Combe. The judges have also implemented regulations regarding minors’ capacity in contracts. In Klienwort Benson ltd v Lincoln City Council, the courts have been open to making groundbreaking decisions, such as ruling that money paid under a mistake of law cannot be recovered.
The formation of contracts is primarily influenced by decided cases. The tort of negligence, as we know it today, was first established by Lord Atkin in the case of Donoghue v Stevenson. This concept has since been applied and further elaborated upon by other judges. In medical situations, a patient who comprehends the situation and is able to make decisions can choose to refuse artificial feeding, even if it is necessary for sustaining their life. This principle was outlined in Airedale NHS Trust v Bland. It is imperative for doctors to respect and follow the wishes and decisions of the patient; failure to do so would be considered trespass.
The House of Lords set the guidelines for liability for nervous shock initially (Alcock v Chief Constable of South Yorkshire). Judicial decisions are also responsible for recognizing new crimes, such as rape within a marriage, as criminal offenses (R v R). Statutory laws enacted by parliament attempt to encompass all areas of common law but still retain the original principles. In 1966, the House of Lords announced its willingness to revoke previous decisions if deemed necessary.
Adapting the law to reflect today’s society and values is crucial for judges. This need was exemplified in the case of R v R, where a man faced prosecution for raping his spouse. The House of Lords played a role in this case and highlighted that significant changes have occurred regarding the legal status of married women. They emphasized that husbands and wives are now equal partners within marriage. Additionally, they underscored that the common law possesses the capacity to evolve in response to social, economic, and cultural developments. As a result, this grants judges (specifically those in the House of Lords) the authority to modify the law when necessary.
It is not practical for judges to avoid creating laws in certain situations because both parties involved in the case would prefer the judge to hear their case and reach a resolution. ‘Judicial decisions are important legal sources when the government is unwilling to seek legislation from Parliament. The executive branch tends to be slow in suggesting new measures, making it susceptible to more effective judicial examination.’ Initially, it was legally established that within a marriage, through mutual agreement, the wife had given up her right to deny sexual intercourse with her husband.
The case of R v Miller highlighted the fact that before R v R, a man could not be charged with marital rape even if the wife had started divorce proceedings. Parliament had not taken any action to reform this law. In comparison to Parliament, judges have limited power to create law through their decisions. Parliament can easily change established rules of law and these changes do not have a retrospective effect, except in the case of Burmah oil v Lord Advocate. On the other hand, judicial law making is influenced by individual liberties and the principles of public law.
It is now widely acknowledged that judges have the authority to create and shape laws when there are gaps in legislation, which is seen as a positive advancement of the common law. The common law evolves through the actions of judges, and as long as we continue to progress in accordance with established principles and respond to new circumstances and societal changes, we are effectively fulfilling the intentions of parliament. Courts are particularly suited to handle certain types of cases that require creative adjudication. While it is desirable for Parliament to ensure clarity and specificity in the meaning of laws outlined in statutes, this ideal is not always met.
To avoid confusion and conflicts in the interpretation of an Act of Parliament, judges use the golden or mischief rule. Nevertheless, there is a disagreement among judges on which approach should be used. Once an interpretation is established, it becomes a precedent for future cases based on judicial decision rules. All three rules can result in different outcomes due to their individual strengths and weaknesses. The literal rule involves interpreting statutory issues based on the exact meaning of the words.
Constitutionally, the literal rule upholds Parliamentary Sovereignty while promoting clarity and transparency in legal matters. However, a drawback of this approach is its failure to acknowledge the inherent ambiguity of the English language, leading to potentially absurd outcomes and exploitable loopholes. Lord Esher emphasized that even if an act produces absurd results, the courts are obliged to uphold it if the language is clear, regardless of any perceived harshness or injustice in the decision.
Michael Zander criticized the literal rule, stating that it is mechanical and disconnected from the actual use of language. He specifically mentioned the case London & North Eastern Railway Co v Berriman, where the widow’s claim was rejected because the court interpreted the words ‘relaying’ and ‘repairing’ in their literal sense under the Fatal Accidents Act. In another case, Fisher v Bell, the court determined that the defendant was not charged with section 1(1) of The Restriction of Offensive Weapons Act 1959 because his display of flick knives was considered an invitation to treat, not an offer to sell.
The cases of Partridge v Crittenden and Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd also abide by the same principle. In Nash v Inman, a tailor sold 11 fancy waistcoats to a minor who was a Cambridge undergraduate with a wealthy father. The minor, however, refused to pay for the waistcoats. The tailor’s case was unsuccessful because he could not prove that the defendant did not already have enough clothing. Thus, the waistcoats were not considered essential goods under the Sale of Goods Act 1979.
The case of Duport steel v Sirs involved a steel company taking legal action against a trade union. The company challenged the union’s protection from legal liability for wrongful acts under the Trade Union and Labour Relations Act 1974. The main issue was determining if workers could engage in secondary picketing during an industrial dispute, which was debated by the court. Ultimately, the House of Lords overturned the Court of Appeal’s decision and declared that secondary picketing was indeed permitted under the statute, upholding parliamentary sovereignty. Over time, changes were made to the literal rule, leading to the emergence of the golden rule as an alternative method for interpreting legislation.
When utilizing the golden rule, judges are granted more discretion. However, there are limitations on its usage. One limitation is the narrow view, where courts can only select from the possible meanings of a word or phrase. This concept was demonstrated in the case of R v Allen, involving the word “marry” in section 57 of the Offence Against the Person Act 1861. The word had two definitions: legally marrying another person or going through a ceremony of marriage. In this case, the individual was found guilty of bigamy. Another instance highlighting the application of the golden rule is seen in R v Ireland, where courts determined that silent phone calls could be considered trespass under section 3 of the harass.
