Chapter 3: Judicial law making

Question 1

What happens if there is too rigid adherence to precedent?

Answer 1

n such cases, there is a scope within the rules for the development of common law principles, for correction of errors and for the making of new law - albeit in a measured and incremental way (Etherton, 2010; Dyson, 2014)

Question 2

What are the 2 schools of thought when debating on whether judges make law?

Answer 2

Declaratory theory

Judicial activism

Question 3

What is the declaratory theory?

Answer 3

Where the judges in the case simply state the law as it has always been

Question 4

What is view of judicial activism?

Answer 4

Judges create new law and then retrospectively apply it to the event/case in question

Question 5

What are ‘hard cases’?

Answer 5

Cases where there are no previous precedent cases or laws

Where judges are seeing the case for the first time, they acquire absolute discretion to create new laws for the matter

Question 6

What is the sole function of judges in the declaratory theory?

Answer 6

Within the constitutional division of powers in the UK, the function of the legislature is to make law, and merely for the courts to apply that law

Question 7

What is the concept historical concept that the declaratory theory employs? Who is what case expresses this view?

Answer 7

• Traditionally, the role of judges are merely to declare the existing laws
• This is a classical exposition/view in (Willis v Baddeley), Lord Esher stated:
• “there is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law applicable.”

Question 8

What are some academic views on the declaratory theory?

Answer 8

William Blackstone’s was in favour of the declaratory theory of law

• He suggests that judges do not make law, but merely by the rules of precedent, discover and declare that the law that has always been that way
• Thus, declaratory theory preserves the doctrine of Parliamentary Sovereignty

Question 9

What is the nature/common view of the declaratory theory?

Answer 9

• Often it is denied that judges make law. On grounds that stability and certainty are the primary values of the doctrine of precedent
• Stability and regularity requires the courts to respect its hierarchy within the courts -
• 1) Deviating from precedent would not be tolerated
• 2) Judges shouldn’t trespass the province of Parliamentary legislation

Question 10

What are the 4 cases that support the declaratory theory?

Answer 10

1. Miliangos v George Frank
2. Malone v Metropolitan Police Commissioner (No.2)
3. Wainwright v Home Office
4. R v Clegg

Question 11

What was said and by whom in Miliangos v George Frank?

Answer 11

Lord Simon

• Gave his dissenting judgement that creation of law should be left for Parliament

Question 12

What was said and by whom in Malone v Metropolitan Police Commissioner (No.2)?

Answer 12

Sir Robert Meggary

1. A reluctance to adhere to judicial creativity
2. Although he recognised the lacuna in the law, he still declined to develop common law rules to fill the gap in legislation
3. He noted, the extension of existing laws and principles is one thing, while the creation of an altogether new right is another matter

Question 13

What was held in Wainwright v Home Office? What was said by Lord Devlin?

Answer 13

Held

1. HOL held HRA 1998 gave recognition to the right to respect private life
2. But it did not entitle the courts to create a new tort

Lord Devlin

1. Judges should not become social reformers or professionally concerned with social justice. Administering the law could be unfair if they were constantly questioning its justice or how it can be improved

Question 14

What was said and by whom in the obiter of R v Clegg?

Answer 14

Lord Lloyd (obiter)

1. He was not averse/opposed to judges making new law, if they saw a need to do so
2. But judicial law reform should be avoided if it involves wider policy issues. Which could arise due to making law
3. Concluded that law-making should be left for parliament

Question 15

What are the 5 arguments for declaratory theory?

Answer 15

No democracy

• Allowing unelected judges to make law would be inconsistent with the principle of democracy

Judges can legislate politically (outside their constitutional function)

• Farrar - argues there is a risk that if the courts are too active in dynamic law-making (too involved in the political arena)

Law applied unfairly

• Lord Devlin - judges shouldn’t become social reformers or professionally concerned with social justice. They might not administer the law fairly if they were constantly questioning its justice or their mind about its improvement

Unrepresentative of society

• Judges come from a privileged social background, unrepresentative of society. They do not appreciate the full economic and social implications of their decisions

Public/societal opinions for parliament to decide

• Where public opinion is sharply divided, judges should leave the matter for Parliament to change/reform

Question 16

What is the argument against Lord Eshers’ opinion on judicial activism?

Answer 16

Although Lord Esher denies these claims, stating that there is no such thing as judge made law

• It seems very far-fetched and fictional as, in reality, the modern day judges are constantly making and changing the law

Question 17

What is the issues/problems that arises with judicial activism?

Answer 17

• Though judges may be said to make law, the question is the extent in which this is legitimate - Whether it is ‘just’ or acceptable within current understandings of constitutional propriety
• The debate whether judges make law now proceeds increasingly amongst human rights terms/cases, and cannot be understood in the terms of conventional practice of precedent

Question 18

What are the limitations of judicial activism?

Answer 18

• Judges sometimes develop the law by applying the Doctrine of JP and different ways of SI to ensure certainty and consistency are met as well as ensuring the law is clearly understood and applied correctly in courts
• Although it is generally accepted as a constitutional that legislature makes law, and judges to interpret the law; where judges do make law, they should do so within narrow constraints

Question 19

What are the 7 cases that support judicial activism?

Answer 19

1. Klienwort Benson v Lincoln City Council
2. McLoughlin Appellant v O’Brian [1983]
3. Lynch v Director of Public Prosecutions for Northern Ireland [1975]
4. R v R (Marital Exemption) [1992]
5. Miliangos v George Frank (Textiles) Ltd.
6. R (Nicklinson & Another) v Ministry of Justice; R (AM) v DPP [2014]

Note (new case)

7. For Women of Scotland Ltd v The Scottish Ministers (2025)

Question 20

What was said and by whom in Klienwort Benson v Lincoln City Council ?

Answer 20

Lord Browne

“The theoretical position has been that judges do not make or change the law; they discover and declare the law which is thought the same. According to this theory, when an earlier decision is overruled, the law is not changed; its true nature is disclosed, having existed in that form all along… In truth judges make and change the law. The whole of the common law is judge made and only by judicial changes in the law is the common law kept relevant in the changing world

Question 21

What was said and by whom in McLoughlin Appellant v O’Brian [1983]? What does what he said, come in line with another view?

IMPORTANT

Answer 21

Lord Scarman’s speech argued

• Judges do create law and by doing so they can keep the common law alive, flexible and consistent, and the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve

This would be in line with Lord Radcliffe’s view in (Not in Feathers Beds, p. 215, 1968) whereby he said

• “…there was never a more sterile controversy than that upon the question whether a judge makes law. Of course, he does. How can he help it?”

Question 22

flexibility is inseparable from the ‘risk of uncertainty in the law.’

What did Lord Scarman argue against this point in the case of McLoughlin Appellant v O’Brian [1983]

Answer 22

• However, flexibility is inseparable from the ‘risk of uncertainty in the law.’ The risk varies with the context of the legal problem under consideration
• The problem of uncertainty takes a different form in areas of ‘commercial transaction’ and ‘tortious liability for personal injuries’
• Lord Scarman argues that justice can demand a loss of certainty in the law

Question 23

What was said and by whom in Lynch v Director of Public Prosecutions for Northern Ireland [1975]?

Answer 23

Lord Simon

“I am all for recognising frankly that judges do make law.”

Question 24

What was held in R v R (Marital Exemption) [1992]? What was stated and by whom?

Answer 24

HOL justified that the abolition of a 250-year-old rule (that a man could not be criminally liable for raping his wife) on grounds that it was not creating a new offence

Lord Dyson commented in a speech in March 2014 titled ‘Are the judges too powerful?’ He was confident in answering

• “This change did not require any difficult policy choices to be made. It was uncontroversial, widely welcomed and long overdue… It is and was inconceivable that Parliament would reverse this decision. Parliament had plenty of opportunity to legislate for an amendment of the law. It seems that the political call for change was not sufficiently compelling. The judges were surely right to step in.”

Question 25

Miliangos v George Frank (Textiles) Ltd.

Answer 25

Note * Overruled **Re United Railways** by utilising the **Practice Statement 1966** Held 1. Damages can be awarded in currency of foreign country specific in the contract 2. A **new rule was needed** due to the changes in foreign exchange conditions, and especially the instability of sterling, since 1961 3. So there was a **departure** or rather avoidance by the judges from the doctrine of precedent as new circumstances warrant a **new approach** to the matter and resulted in **creation of new law**

Question 26

R (Nicklinson & Another) v Ministry of Justice; R (AM) v DPP [2014]

Answer 26

* Unanimously held that the question whether the current law on assisted suicide, was **incompatible with Aritcle 8 of ECHR** * **UKSC** has **constitutional authority** to make a declaration of incompatibility with Article 8 * 4 dissenting judges held that the issue was better qualified for Parliament to assess rather than the courts ## Footnote previous COA decision said the opposite

Question 27

**For Women Scotland Ltd v The Scottish Ministers (2025)** ## Footnote for judicial activism

Answer 27

Issue I * nterpretation of the word ‘woman’ in accordance to **Equity Act 2010**, and the extent that judges can make interpretations without interfering with **policy** Facts 1. Para 2 - the principle question is the **meaning of the word** Parliament used in EA 2010 in legislating to **protect women** and members of the trans community. 2. Para 2 - ‘Our task is to see if those words can bear a **coherent and predictable meaning** within the EA 2010 consistently with the **Gender Recognition Act 2004** (“the GRA 2004”).’ 3. Para 4 - ‘The question for this court is a matter of **statutory interpretation**. But before discussing the general approach to statutory interpretation, we set out the structure of this judgment and address the **matter of terminology**.’ Takeaway * Courts are willing to ‘make law’ and interpret the meaning of woman in EA 2010

Question 28

What is the case where the courts refused to make law on sensitive (political) issues?

Answer 28

Nicklinson and Lamb v Ministry of Justice [2013]

Question 29

Nicklinson and Lamb v Ministry of Justice [2013] ## Footnote IMPORANT

Answer 29

Facts 1. Appellants both suffer from permanent and catastrophic disabilities. Wanted to be helped to die at a time of their choosing 2. Neither was able to end their life on their own 3. They argued that as a matter of common law and the ECHR, anyone helping them to end their life should not be subject to criminal consequences Issue 1. However, the current law is that **providing such assistance would be committing an offence** of asisted suicide, contrary to **Section 2(1) of the Suicide Act 1961** - if they merely assist a person to take their own life, and murder if they terminate life themselves Held 1. COA - Lord Chief Justice, the Master of the Rolls and Elias LJ, **declined to rule in the appellants’ favour** 2. LCJ made clear that he felt this was an issue on which the courts should not be legislating “The short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision. The repeated mantra that, **if the law is to be changed, it must be changed by Parliament**, does not demonstrate judicial abnegation of our responsibilities, but rather **highlights fundamental constitutional principles**… The circumstances in which life may be deliberately ended before it has completed its natural course, and if so in what circumstances, and by whom, raises profoundly **sensitive questionsabout the nature of our society, and its values and standards, on which passionate but contradictory opinions are held** … For these purposes Parliament represents the conscience of the nation. Judges, however eminent, do not: **our responsibility is to discover the relevant legal principles, and apply the law as we find it**. We cannot suspend or dispense with primary legislation. In our constitutional arrangements such powers do not exist.”

Question 30

What are the 3 academic views for judicial activism?

Answer 30

* There is ample judicial writing and scholarly discussion to conclude that in the English common law system the judiciary do perform a **limited law-making function in incrementally developing the common law**. To ensure that it **keeps pace with changes** in social and economic conditions and remains sufficiently **flexible** to accommodate new situations * **Lord Reid** - He famously said: “We do not believe in fairy tales any more. So we must accept the fact that for better or worse **judges do make law** – and tackle the question how do they approach their task and how they should approach it.” * **Lord Dyson** - “...in deciding whether to develop the common law or to leave any change to Parliament, the courts do not apply some overarching principle… some judges are more cautious than their colleagues; others are more adventurous. **But despite these differences, the common law continues to evolve**. What is clear is that the judges have **great power in shaping the common law and, therefore, influencing the lives of all of us**. The existence of this power is, of course, always subject to Parliament. If Parliament wishes to change the common law, it can do so. But, despite some notable exceptions… Parliament rarely shows any appetite to change the common law. So far as I am aware, the manner in which the judges **develop the common law has not excited much political comment or given rise to a demand to clip the wings of the judges**. I would like to think that this is because, on the whole, the judges have done a good job in this area and no-one has suggested a fundamentally different way of doing things that would command popular support.”

Question 31

What are the 5 arguements for judicial activism?

Answer 31

1. **Responsive to changing circumstances** and **promotes justice** 2. Interpretation of the law should look to promote **justice** and **equality** 3. Courts can **rapidly develop or overrule** the law if necessary 4. Every rule of the common law must have an **origin** 5. Judges have **more experience in applying the law** - they can foresee how problems can be solved better than Parliamentary drafters

Question 32

What is the relationship between statutory interpretation & judicial law making?

Answer 32

SI is also a method of how judges make law ## Footnote both related

Question 33

What are the the different priciples/approaches to SI?

Answer 33

1. Literal Rule 2. Golden Rule 3. Mischief Rule 4. Purposive Approach 5. Contextual Approach 6. ECHR 'approach' 7. Intrinsic Aids 8. Extrinsic Aids

Question 34

What is the more modern approach to SI? Explain what it is.

Answer 34

Purposive Approach * Judges interpret statutes by deciding **what they believed** parliament’s **intention** to be in the drafting process

Question 35

Which judge commonly uses this approach? What is an example case of when he used it? What did he say in that case?

Answer 35

**Lord Denning** popular in using this approach **Magor and Mellons v Newport Corporation [1950]** * "We sit here to find out the intention of Parliament and carry it out, and we do this better by **filling in the gaps** and **making sense** of the enactment than by opening it up to destructive analysis.”

Question 36

However, the purposive approach has dealth with a lot of critisms. Who are the 2 judges that criticise this approach? What did they say?

Answer 36

**Lord Simonds** called Lord Denning’s approach * “A naked usurpation of the legislative function under the thin guise of interpretation” * And pointed out that “if a gap is disclosed the remedy **lies in an amending Act**.” **Lord Scarman** * “If Parliament says one thing but means another, **it is not**, under the historic principles of the common law, for the **courts to correct it**. The general principles must surely be acceptable in our society. **We are to be governed not by Parliament’s intentions but by Parliament’s enactments**.”