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Workshop 6.4 - Law-making - Coggle Diagram
Workshop 6.4 - Law-making
Constitutional context
Lord Diplock in
Duport Steels v Sirs [1908] 1 WLR 142
: "The constitution is firmly based on the separation of powers; Parliament makes the laws, the judiciary interpret them"
The judiciary have built up a body of legal principle. Notably in areas of private law. Judges have therefore made law.
Most law is made by statute but the judiciary's constitutional responsibility for interpreting legislation plays a role in shaping and influencing how the law is applied.
Making laws
Each 3 bodies of the state in the UK play a role in making laws.
The executive
Government proposes primary legislation to be considered by Parliament and drafts secondary legislation.
The legislature
Parliament can propose primary legislation of its own and decides whether executive proposals become law.
The judiciary
It interprets Parliament's intentions in making legislation and develops the common law.
Judges making law?
Judges are instrumental in the implementation of the law through the interpretation of statute. This is recognised as a constitutional responsibility of the judiciary.
Sometimes courts are accused of judicial activism.
Shaw v Director of Public Prosecutions [1962] AC 220
Shaw wanted to publish a directory of prostitutes and his lawyer told him that this is not a criminal offence.
Nevertheless, a conviction of conspiracy to corrupt public morals was upheld even though there was no such statutory offence and a conviction like this was unprecedented.
The House of Lords held that the courts had power to enforce the supreme and fundamental purpose of the law to conserve the safety and moral welfare of the state.
The issue is whether the court could effectively create a new offence in its capacity as keeper of morals in the absence of legislation by Parliament.
The court's justification was that there was a long line of case law establishing conduct to corrupt public morals was an indictable misdemeanor. The court was there for
not
creating a new offence, it was just applying existing principles of law to the facts.
The absence of a statutory basis for a crime is irrelevant if there is a established common law principle. Application of that principle is not making new law but applying existing law.
Deference
Deference is a more cautious attitude when courts choose to defer to Parliament by resisting any call to develop law in a particular area.
Malone v Metropolitan Police Commissioner [1979] Ch 244
Malone was charged with handling stolen property.
The prosecution admitted to intercepting Malone's personal phone calls.
Malone sough declarations against the Met police to the effect that intercepting his calls was unlawful.
The court found for MPC and held that:
There was no prohibition on the interception of telephone calls in English law.
There was no right to privacy in English law (this was before the ECHR was enforceable in English law).
Sir Robert Megarry VC "No new right in the law... can spring from the head of a judge deciding a particular case: only Parliament can create such a right"
Gillick v West Norfolk Health Authority [1986] AC 112
This case illustrated 2 key points:
a) Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.
b) A feature of common law is that it develops with the changing political and cultural climates.
The court was asked to rule on the question of whether children under 16 could lawfully be given contraception without the knowledge of their parents.
The House of Lords decided that if the minor was sufficiently mature to be able to consent to medical treatment (the Gillick competence) then they could be given contraception.
There was no prior authority on this point.
Lord Denning "the common law can, and should keep pace with the times"
Lord Scarman warned against judges "failing to keep the law abreast of the society in which they live and work"
Modernising the law
R v R [1992] 1 AC 599
This is sometimes cited as an example of judicial activism because the law lords overturned the archaic common law principle that, by virtue of marriage, a woman consents to sexual intercourse with her husband.
The judgment considered whether a change of the apparent common law position was appropriate in the absence of legislation by Parliament.
The court considered that it
was
appropriate. Lord Lane CJ "Where the common law rule no longer represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment".
The court concluded that the wording of the relevant enactment could be interpreted in such a way as to overturn the existing common law principle.
Airedale NHS Trust v Bland [1993] AC 789
This case faces the problem of when the state of the law is not entirely clear or the legislation hasn't caught up with new societal or medical developments.
After a serious injury, Bland was left in a vegetative state.
Bland's family applied for a declaration that his medical team could lawfully withdraw treatment and let him die. The declaration was granted by the court at first instance and confirmed by the Court of Appeal.
The Official Solicitor's appeal to the House of Lords was dismissed as the HoL considered that the issues involved (best interests of the patient and the distinction between actions and omissions in the law on homicide) could be adjudicated upon by the courts.
Notably, the law lords emphasised the desirability of Parliament legislating on novel matters of policy. Lord Browne-Wilkinson "Where a case raises wholly new moral and social issues, in my judgement it is not for the judges to seek to develop new... principles of law"
In this case, the law lords were content that they were working from existing principles in relation to the distinction between acts and omissions. The court's function was to determine accordance with the existing law and not seeking to develop new law.
Conclusion
Courts are conscious of their place in the constitutional hierarchy and so way of encroaching on parliametary territory.
The courts will not feel it right to develop law when there are insufficient existing common law threads to build principles from.
They are also wary of making new principles when the matters are novel and contentious, especially if they are political or ethical matters.
Courts will generally defer to Parliament, as the elected sovereign body, as it is the appropriate forum for the debate and resolution of these matters.
Parliamentary response
Parliament has a form of constitutional safety mechanism if it thinks that the courts have exceeded their authority in law making.
A legal principle established by the courts can be over-ridden by Parliament passing legislation.
Burmah Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75
Oil fields in Burma were destroyed by British forced during WW2. Law lords decided that compensation should be paid to Burmah Oil.
Parliament passed the War Damages Act 1965, which exempted the Crown from paying compensation for property damages or destruction in war.