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The role of judges in the English legal system. Should judges create a new law?

Hausarbeit 2015 12 Seiten

Jura - Zivilrecht / Handelsrecht, Gesellschaftsrecht, Kartellrecht, Wirtschaftsrecht



Part 1
1 Introduction
2 The Quote's Background
3 The Doctrine of Precedent
4 The Interpretation of Statutes
5 Should judges create new law?

Part 2
1 Introduction
2 Tare V David
3 Sally V David
4 Lin V David
5 Raphael V David
6 Conclusion
7 Bibliography

Part 1

1 Introduction

Different to the vast majority of the European Countries the legal system in the United Kingdom is not based on a constitution. English law is uncodified id est the laws of certain areas of law are not systematically bundled into one specific code.

Basically, the English law is composed of three elements: directly enforceable EU law, common law and legislation created through Parliament whereas the latter is the highest form of UK law. Under British Constitutional Law the Parliament is sovereign. Following the traditional interpretation of Parliament Sovereignty "it has the power to make any statutes on any subject matter, and [...] British courts are bound to enforce that laws" (Jones 2015, p. 45) without questioning their validity. Contrary to countries with a written constitution, UK courts do not have the power to overrule statutes that appear to be unconstitutional.

Characteristically, judges have a significant role within the English legal system. Unlike the, for example, German legal system judges in the United Kingdom do not only decide on cases according to existing laws but also are able to create and influence laws. Due to the unique role of judges in the English court system the Doctrine of Precedent and Statutory Interpretation were manifested as principles of the national court system.

Consequently, this paper will discuss the following statement in the light of the Doctrine of Precedent, the rules of Statutory Interpretation and whether judges should be creating new law.

“It is not for the judge to invent fancied ambiguities as an excuse for failing to give effect to its [legislation] plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral."[Express Newspapers Ltd. V Macshane, [1980] 1 All ER 65 (HL) p. 541)

This quote was given by Lord Diplock in the case Express Newspapers Ltd. V Macshane, [1980] 1 All ER 65 (HL) on page 541. In order to analyse the quote in the context of the above- mentioned principles of English Law this paper will be divided into three main parts: The Doctrine of Precedent, Statutory Interpretation and the discussion whether judges should be creating new law.

2 The Quote's Background

The quote was taken from the case Express Newspapers Ltd. V Macshane concerning employment, industrial as well as trade union disputes.

The quote itself is referring to the so called Literal Rule which is a main element of Statutory Interpretation and will be discussed later on.

To sum it up briefly, Lord Diplock states that judges should not interpret statutes in a broader sense but rather are bound to "give effect to [the legislation's] plain meaning" (Express Newspapers Ltd. V Macshane 1980). It is not up to judges to decide whether giving effect to statutes would be “inexpedient, or even unjust or immoral"[Express Newspapers Ltd. V Macshane 1980). In order to maintain the intention of legislation, ambiguous interpretation would gradually deconstruct the spirit of the law rather than supporting it.

Lucy Jones is of the opinion that "judges should only be interpreting legislation, not changing or modijying it, even if its application appears unjust" (Jones 2015, p. 52). This quote is certainly in support of Lord Diplock's approach.

3 The Doctrine of Precedent

A further particularity of the English legal system is the Doctrine of binding Precedent, also known as stare decisis. The Doctrine of Precedent is a fundamental reason for the importance of case law within the English legal system (Jones 2015, p. 6). English judges, as opposed to other European countries, do not only consider previous decisions in cases with comparable facts but are bound to apply the jurisdiction of earlier cases if they "were heard in in a court of superior [...] and sometimes [...] equal status" (Jones 2015, p. 6). The Doctrine of Precedent is a key concept of the English legal system giving judges the opportunity to influence legislation or even to create new law.

According to the principle of stare decisis, until the Practice Statement 1966 the House of Lords was bound to all of its previous decision even if this created “injustice [and] unduly restricts the proper development of the law" [London Tramways Co. V London County Council [1898] AC 375). By this Statement "[their Lordships] propose therefore׳, to modify their present practice and, while treating former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so (Practice Statement HL Judicial Precedent. [1966] 1 WLR 1234 ). The Practice Statement authorises the Supreme court (formerly the House of Lords) to depart from previous decisions whereas precedents are still binding for lower courts.

In correlation with the Doctrine of Precedent a, specifically, ethic discussion has arisen during the case of Airedale NHS Trust V Bland [1993] A.c. 789. Tony Bland who suffered from severe injuries was kept alive with life supporting machines. Prior to this case doctors could be charged with murder if they turn off life supporting machines (R V Arthur (1981) 12 BMLR 1). Taking into consideration that there was no prospect of recovery in this case the House of Lords (Supreme Court) found that the machines could be switched off.

Since homicide is a criminal act not only the question whether switching off life supporting machines corresponds to the definition of the crime of homicide but also whether it should be in the power of judges to make a decision with such extensive ethical implications.

It is fair to say that the sentence in the case of Airedale NHS Trust V Bland definitely created new law and therefore contradicts the intention of Lord Diplock's statement. However, the Doctrine of Precedent fundamentally supports his statement as it leaves little room for judges to create new law.

Furthermore, an important advantage of a system of Precedent is that it brings consistency and certainty as judges generally follow the law set down in earlier cases. "It is important that law is clear and stable, and individuals can rely on it not being subject of constant changes" (Jones 2015, p. 61).

Whereas a system of Precedent brings consistency on the one hand it is rigid on the other one. Considering the continuity of the English law, jurisdiction can be vulnerable to fail anticipating changes in the values of society.

4 The Interpretation of Statutes

Statutes, as sovereign legislation of the Parliament, have to be written in a complex and sometimes even ambiguous way to cover as many situations as possible concerning a certain subject. Therefore, in order to apply the law judges have to interpret statutes. Considering that approximately 90ฏ/0 of cases in the Supreme Court and 50ฏ/0 of High Court cases involve statutory interpretation (Twining; Miers 1999, p. 156) the interpretation of statutes appears to be a frequent process rather than an exception.

Since statutes rarely tend to be unambiguous. Judges often "have to determine the meaning of a particular word or section of a statute in a court case" (Jones 2015, p. 52). Even though this may be a difficult process, the outcome is not only crucial to the current trial but also, and probably even more, to following cases according to the Doctrine of Precedent. Therefore, certain rules of statutory interpretation were developed. Within the field of Statutory Interpretation two contrasting views of how judges should interpret Statutes have evolved: the literal and the purposive approach. Whereas the literal approach examines the literal meaning of the statute's words the purposive approach looks beyond the words considering the spirit of the statute to apply the actual intention of it (Jones 2015, p. 53).

More specifically, the golden, the mischief, the contextual and the literal rule have been evolved by the courts in order to interpret statutes. Since the quote which is to be dealt with references to the literal rule this paper will not further explain the former ones.

"In using the literal rule, the intention of Parliament is found by examining the words in a statute, and giving them their ordinary, grammatical meaning" (Jones 2015, p. 53). Regarding the mainly non-legislating function of judges this rule supports the sovereignty of Parliament.

As long as the words in a statute are unambiguous and do not have more than one single meaning, the literal rules indeed appears to be a proper way to give effect to the intention of Parliament. Therefore, whenever words are ambiguous the literal rule cannot be applied (Jones 2015 p. 53). However, in some cases “giving words their ordinary meaning leads to absurd or illogical results making it questionable whether Parliament actually intended those results" (Jones 2015, 53). The case of R V Harris [1836] 7 c & p 446 clearly demonstrates that other side of the coin. Harris, the defendant, bit of his victim's nose. The Act of Parliament under which Harris should have been charged defined the offence as "stabbing, cutting or wounding”. Using the literal rule, the court found that biting off someone's nose does not meet the definition of stabbing, cutting or wounding. Therefore, Harris was not found guilty.

The literal rule certainly is an important cornerstone of the English Legal System since it clearly supports the Sovereignty of Parliament. However, it definitely has some disadvantages



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Institution / Hochschule
Anglia Ruskin University – Ashcroft International Business School Cambridge
Business Law Wirtschaftsrecht should judges create new assignment Hausarbeit the role of english legal system




Titel: The role of judges in the English legal system. Should judges create a new law?