The Incorporation Of European Convention Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Traditionally it was used to be thought that judges do not make law they just merely expound and declare the existing law rather than create it and this was know as declaratory theory. But in recent times it is clear that judges, particularly the senior judges in the Court of appeal and House of Lords (now the United Kingdom Supreme Court) are widely engaged in law-making. This was also supported by Lord Reid as he said that there was a time when it was thought almost indecent to suggest that judges make law-they only declare it but it is now like a fairy tale in modern times.(Lord Reid ‘The Judge as Lawmaker’ (1972) It is argued that it is impossible for them to avoid doing so and the distinction between creation and interpretation of law is so difficult to draw to be almost meaningless. [1] 

Determining the boundaries of judicial law making is partly a doctrinal partly a constitutional question. Lord McLoughlin in Appellant V O’Brian [2] argued that the judge had a jurisdiction over a common law that ‘knows no gaps’ and no ‘casus omissus’. If this is the case, the task of the common law judge is to adapt the principles of the law to allow a decision to be made on the facts in hand and this may involve creation of new law. However, it is also clear that where the formation of principle involves too great an intrusion into the field of policy, the judge must defer it to the Parliament. [3] 

Now moving on to the case laws which supports the view that judges do make laws. Regina V R [4] is perhaps one of the best examples of judicial creativity. The House of Lords determined that a husband could be held guilty of raping his wife. Lord Lane interpretation of the relative Act was creative enough to amount to judicial legislation which was done under the veil of adapting common law with the changing social attitudes. [5] 

Similarly in Fitzpatrick V Sterling Housing Association [6] the House of Lords reinterpreted the relevant sections of Rent Act 1977 on the basis that the change was in accordance with contemporary notions of social justice. Also in Ghaidan V Godin-Mendoza [7] the court ends up reinterpreting a statute which definitely amounts to a judicial law making. [8] 

Also in White V White which concerned the division of assets on divorce, the House of Lords held that the court should start from the assumption that the husband and wife were entitled to equal shares on divorce, rather than, as it had done up to that time, seeking to provide for the reasonable needs of the non-earning partner. [9] 

In Donoghue v Stevenson [10] , Lord Atkin said that a manufacturer of products will be liable for want of reasonable care if he sells those products in a form which shows they are meant to reach the ultimate consumer in the same form as when they were manufactured and if he knows that the absence of reasonable care will cause injury. The decision established the concept of negligence, which definitely amounts to a judicial law making. [11] 

The House of Lord’s decision in Hedley Byrne v Heller [12] may also be seen as an example of judicial law making. In that case the HL held that there can be a duty of care in absence of a contractual relationship even when an advice was given of the record. Also in Kleinwort Benson Ltd v Lincoln CC [13] the House of Lords held that money paid due to mistake of law is refundable and the reasoning behind this change was that the common law principle of payment made by mistake is non-refundable does no go with the modern principle of restitution and unjust enrichment. The decision of Pepper v Hart [14] also amounts to a judicial law making whereby the court held that Hansard can be used as an extrinsic material to statutory interpretation.

The House of Lords’ decision in Rylands v Fletcher [15] also a great example of judicial law making. it was heavily criticized when it first appeared because many perceived the judges as having invented a legal principle not previously found in the case law.

In R v C [16] the House of Lords retrospectively creating a new offence where none existed before by holding that the decision of R V R [17] applied to events that had already taken place, as well as those in the future. Allowing this retrospective effect definitely results in a creation of a law.

In Shaw v. Director of Public Prosecutions [18] , whereby the House of Lords created a new offence of conspiracy to corrupt public morals. Simonds proclaimed it the duty of the criminal courts to guard the moral welfare of the state. [19] 

The incorporation of European Convention of Human Rights by Human Rights Act 1998 also impacted on the judges’ perception of the boundaries of their law-making powers. S.3 of HRA 1998 the courts are obliged to interpret the domestic law compatible with the relating provisions of the convention rights, so far as it is possible to do so. The courts have used this section as a too for judicial law making which can be seen by taking some case laws into account.

In R v Offen and others [20] the Court of Appeal used its discretion to limit the reach of a statutory section which can be seen as an example of judicial law making. [21] In Venables and Thompson V Newsgroup Newspapers [22] , the court held that ECHR applied via HRA 1998 even though the defendant newspapers were not a public authority and the dispute was one between private parties, which results giving horizontal effect to HRA 1998 which was not given by the Act itself. (also see Douglas v Hello [23] ; Campbell v MGM [24] ) [25] 

Lord Steyn in R(Daly) v Secretary of State for Home Department [26] stated that the interpretation of the domestic legislation may even require the courts to adopt an interpretation which may appear linguistically strained in order to make it compatible with ECHR; in most of the times it would amount to a judicial law making.

However, the court will sometime restrain them from providing a new principle using HRA 1998 as a tool. For example, in R v Kensal (No.2) [27] the court did not allowed a retrospective effect of HRA 1998, if allowed which would definitely amounts to an judicial law making.

Moreover, there are also authorities which suggest that the power of the judges to make law is also limited to certain circumstances which suggest that declaratory theory is not totally nonsense. In R V Clegg [28] suggests the kind of situation in which a judge will not legislate. The House of Lords held that on a charge of murder, there was no distinction between the use of excessive force in self-defence, and the use of force in crime prevention. Most importantly, the House of Lords refused to change the law in relation to the reduction of murder to manslaughter stating that it was a matter for parliamentary legislation. [29] Lord Simon acknowledges that judges do make law; they have to refrain from so doing when policy matters are involved. [30] 

In C V DPP [31] House of Lords refused to abolish the rule, arguing that although it was not consistently applied, it was necessary for parliament to legislate. Lord Lowry was careful to point out the line between judicial intervention and the correct province of Parliament. He draws support for the refusal to overturn the presumption of doli incapax from R v Kearley [32] where House of Lords refused to alter the hearsay rule. Lord Lowry also provided some guidelines in respect of this area of law. Firstly, he said that if the solution is doubtful, the judges should beware of imposing their own remedy. Secondly caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. Thirdly, disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. Lastly, judges should not make a change unless they can achieve finality and certainty. Lord Lowry’s guidelines are congruent with those of Lord Lloyd in R vClegg [33] . [34] 

In Airdale NHS v Bland [35] , the court held that medical staff no longer under a duty to continue treatment sustaining the patient’s life when it was established that there was no hope of recovery. Lord Browne-Wilkinson took the opportunity to consider the correct role of the courts in a fraught area. Precisely because there was no consensus in society about the correct values that should inform this area of medical ethics, it was not fitting the judges to develop new, all embracing, principles of law that only reflect individual judges’ moral stance. A judge thus must work with the existing law. He carried on stating that the moral, social and legal issues raised by such a case should be considered by Parliament. [36] The essence of this decision can be seen in the decision of Bellinger v Bellinger [37] where House of Lords upheld the principle that English law does no recognize a marriage between two people who were at the same gender at birth. The HL explained recognizing the marriage would mean interference with disputed matters of social policy which is for the Parliament to deal with.

It was also supported by many authors, commentators and judges that judges do make law and the declaratory theory is somewhat suspended in modern times. For instance, as Thomas Raphael concludes that The idea that the declaratory theory precludes judges "acting" can also be countered: it has been clearly accepted in modern times that the theory is in reality a fiction and while it might persist as a technical rule to explain the retrospectivity of judgments, there is no need to allow this metaphor to determine our interpretation of the phrase "acting incompatibly". [38] However, there are also some contrary views, for e.g. as J.A. Jolowicz said that though we recognize the fiction involved in the "declaratory theory" of judicial decision, we act on that theory most of the time and we are encouraged to do so by the style in which most judgments are delivered. [39] 

Having regards to all the case laws and comments given by various authors and commentators it can be safely concluded that the declaratory theory i.e. judges don’t make laws they just interpret it as they finds it, is somewhat relaxed in modern times. Although it is the duty of the Parliament to make laws; not of judiciary, still judges end up making laws. In the views of Lord Scarman, it is the distinguishing feature of the common law: the judicial creation of new law, as the justice of the case demands. [40] Moreover, after the incorporation of convention rights through Human Rights Act 1998, the law making power of the courts seems to be more enhanced, as judges started to use the provisions of this Act as a tool to interpret statutes ultimately end up creating a new law as the line between creation and interpretation of laws sometimes gets blurred.