The Doctrine Of Separation Of Powers Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

‘There can be no real argument about it: judges make law. Declaratory theory is more or less nonsense.’

Candidate No:

The doctrine of separation of powers dictates that Parliament makes the law and the role of the judiciary is simply to apply the law to the cases before them. Unelected judges do not and should not become involved in law making, which is constitutionally preserve of the democratically elected parliament. But how could someone reconcile the making of ‘case law’ with this theory? Famous constitutional author Blackstone tried to make such a reconciliation basing on his ‘declaratory theory’, according to which common law does always exist and, rather than creating, judges merely declare them. However, to what extent this is accurate is highly debatable as there are a number of areas where judges clearly make law.

Generally speaking, statutes do not contain all of the laws; rather a major portion of law is derived from common law. Murder is a crime found in common law, considerable sections of law such as Tort and Contract originally developed within common law. An example can be drawn by the tortuous liability of negligence which was devised in the case of Donoghue v Stevenson [1] and further developed in cases like Dulieu v White & Sons [2] ; and Hedley Byrne v Heller & Partners [3] . Most importantly, this aspect of law is still statutorily unattended. Thus, considering the huge volume of common law, it is difficult to deny that judges play no part in law making.

The primary content of common law through which common law takes the form of binding legal rules is the product of judicial decisions. Through the system of judicial precedent higher courts are theoretically establishes legal principles which are to be followed by lower courts in similar cases. As a result, a degree of certainty within the common law is created because the system of judicial precedent considerably restricts the ability of the judges to deviate from the established legal principles. Take the example of X suffering psychiatric injury as a result of Y’s unlawful and reckless conduct. Now can he be charged under section 47 of OAPA [4] ? This section requires, inter alia, proof of ABH [5] . The question is whether a psychiatric injury is capable of amounting to ABH, of which the OAPA 1861 have no reference. The case of R V Ireland and Burstow [6] holds that a recognized psychiatric injury can amount to ABH. So in our case the court is to hold X’s psychiatric injury amounting to ABH for the purpose of section 47 OAPA (1861), unless it can be distinguish Ireland from the present facts. This process of distinguishing also shows us that in practice, judges have a considerably flexibility to avoid the application of the binding precedent. Therefore, if it is accepted that Blackstone’s declaratory theory does not apply in practice, then clearly the judges do make law, rather than explaining the law that is already there. Authors such as Griffith and Waldron accept that judges do have discretion, and therefore they do to some extent make law.

Our society is in a constant process of changing and, particularly in order to accommodate social changes, the judiciary has effectively re-written the law to the development of common law principals in numerous occasions. For example the landmark case R V R [7] (1991) overruled a century of acknowledged precedents to established marital rape. The court gave the decision in 1991 and the pre-1991 believe on this position was completely to the contrary. Can this case be reconciled with the idea that the ‘common law does always exist’ even for a little bit? More recently, in R V Dica [8] (2004), the court of appeal determined that a person could be criminally liable for recklessly inflicting someone with HIV [9] . This change on law was made despite the fact that the Home Office had earlier decided that legislation should not be introduced which would impose liability in this situation. Therefore, the assertion that judges do make law would difficult to rebut. However, this ‘law-making’ ability of the judiciary has been heavily criticized.

Often the court faces with situations where there is no clear law and the court have to clarify the situation by laying down clear set of principles. This was exemplified in Airdale NHS Trust V Bland [10] , where the House of Lords had to decide the lawfulness of ceasing artificially feeding a patient in coma. Several Law Lords made it plain that the case involved ‘holly new moral and social issues’, which should be decided by the Parliament, and the judges’ role being to ‘apply the principles which society, through the democratic process, adopts not to impose their standards on society. Nevertheless, the court had no option but to make a decision on way or the other. They decided that the action was lawful in the circumstances, because it was in the patient’s best interest.

Furthermore, the judiciary also controls the operation of case law without reference to the Parliament. An obvious example is that the 1966 Practice Statement giving the house the flexibility to depart from its past rulings, which made case law more flexible and granted the judges more power, was made on court’s own authority, without needing permission from the parliament.

Though, as we already know that the judiciary’s role is to apply laws made by the parliament, this is not always a straightforward task. Poor drafting of statutes may create ambiguity which the court will need to resolve. Furthermore language is imprecise on occasion as words may have more than one meaning and a court may need to impose one it is not always possible to have every eventuality in mind when drafting a statute. While it is often said that this process involves the judiciary attempting to discover the intention of Parliament, which would imply that the judiciary seeks to avoid playing the role of ‘law-maker’ when interpreting statutes, the reality is that there is a series of different approaches to statutory interpretation which a court might take with radically different outcomes in terms of a statutory provisions practical application. For example, literal interpretation may sometimes result in absurdity clearly unintended by the Parliament. In Fisher V Bell [11] , the display of flick knifes in shop window was held not to amount to the offence of offering such weapon for sale contrary to the Restriction of Offensive Weapons Act 1959. Was not this outcome completely to the contrary of the Parliament’s intention on the relevant legislation? Although the court could argue it simply interpreted the law, the fact is that its interpretation determined how the provision in question would be applied, effectively giving it a practical application of its choosing. The judiciary’s recent trend is to adopt a more purposive approach to statutory interpretation. This approaches main idea is to find the objective behind a particular provision. The adoption of this approach has further been re-enforced by the decision in Pepper V Hart [12] , which allows judges to consult Hansard when interpreting statutes. While a more purposive approach to interpretation might be felt to minimize the damage of judges giving meanings to provisions at odds with their intended objectives, there remain difficulties in ascertaining the intention of Parliament and judges nonetheless retain the discretion to use any approach to statutory interpretation which they wish. Although they may be simply interpreting the law, the approach which they choose will in practice determine what the law is understood to be.

Perhaps the enactment of HRA [13] has granted the judiciary’s some more law making power. Section 3 requires the courts to interpret statutes in a manner compatible with the Convention rights ‘in so far as it is possible to do so’. If this is not possible then s. 4 gives the courts the discretion to make a declaration of incompatibility. Amending legislation can then be laid before the Parliament although this is not mandatory (s. 4). Shortly after the Act came into the force, the court had to consider the extent of the power conferred by s. 3 in the case of R v A [14] .The court found that provisions in the Youth Justice and Criminal Evidence Act 1999 breached defendant’s rights under Art 6 and, it was held that the statute should be interpreted to give effect to those rights despite the fact that such interpretation would conflict with the clear meaning of the words of the 1999 Act. Lord Steyn felt that this was acceptable as s. 3 allowed for an interpretation that was ‘linguistically strained’. In the dissenting judgment, Lord Hope expressed concern that such utilization of s .3 ran the risk of judiciary assuming the role of the Parliament. Thus, an overuse of section 3 could therefore result in significant limitations upon Parliamentary sovereignty as Acts of Parliament will be subject to the judiciary’s interpretation of the legislation which could be interpretations in accordance with Convention rights, possibly changing or stretching the meaning of the legislation in the process as can be seen in Ghaidan v Mendoza [15] and A.

However, the decisions in cases such as R v A, and Ghaidan v Mendoza should be viewed in the context of the general development of the jurisprudence in the wake of the HRA. Lord Steyn felt that s. 4 should be used as a ‘last resort’, but the courts have tended to retreat from using s. 3 to make radical alteration to statute. In Re S [16] , whilst not directly criticizing the decision in R v A, the judgment warned the judiciary against the ‘interpretative amendment’. In Wilson v First County Ltd [17] , the court preferred s. 4 over s. 3. Thus, it seems that, despite Lord Steyn’s view, s. 4 have been more frequently used.

Therefore the declaratory theory appears to be nothing but, as Lord Reid suggested, a ‘fairy tale’. Writers such as David Kairys rejects the theory and criticises Ronald Dworkin, who, to some extent, comes to the support of the theory. Professor Hart accepted that judges make new law and that this is necessary where there are no existing rule to cover the situation. Hart could see cases such as Donoughue v Stevenson as making a new law which filled a gap in the existing law, whereas Dworking could have found it as existing principle. More importantly, Lord Reid, in his ‘ The judge as lawmaker’ said, ‘we do not believe in fairy tales anymore, so we must accept the fact for better or worse judges do make law’. However, this law making ability of the judiciary has been heavily criticized. Bennion criticized the House of Lords in DPP vs. Jones [18] , where the House overruled another long standing principal that public have a right to use the high way only for "passing and re-passing " and not for any other activity such as picketing and demonstrating stating that the public has a right to enjoy it for any reasonable purpose. Bennion thought that, in making decision like these, the judiciary is interfering in the areas of public policy which are beyond the realm of their power.