Adv & Did Of Mischief Rule (Dis. (Inconsistency (The outcome of the…
Adv & Did Of Mischief Rule
It gives too much power to unelected judges.
Parliament should not rely on judges to give effect to important changes in the law. The democratic solution would be for Parliament to pass on amending Act.
The outcome of the mischief rule is difficult to anticipate
It may cause confusion if a judge changes the meaning of a statute
It would be better for the law to remain fixed rather than have judges making changes to Acts.
Out of date.
The role of judges has changed since the sixteenth century when Heydon’s Case was passed.
Statutes are better drafted today and the purposive approach is taking over from mischief rule.
The mischief rule was developed when Acts were a minor source of law; drafting was not as precise and before Parliamentary supremacy was established
It gives effect to Parliament’s Intentions
It promotes the purpose of the law
It focuses on what Parliament meant rather than what is stated in the Act
In Smith v Hughes, it was clearly Parliament’s intention to stop prostitutes from being a nuisance to others, whether they were literally in the street or not.
Judges should use their good sense to do what Parliament would have done if it had had the situation in mind.
Lord Denning said in Magor and St Mellons that it allowed judges to ‘fill in the gaps’ when Parliament had left something out. This is much better than Parliament having to spend time passing an amending Act.
It allows judges to consider social and technological changes.
Parliament cannot always foresee what may happen in the future.
The decision in Royal College of Nursing recognised that medical practice had changed since the passing of the Abortion Act
Parliament could not have anticipated the medical advances that would take place, but they would have wanted to allow doctors to adopt whatever practice was appropriate and this would include allowing nurses to induce abortions under supervision.