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o judges make law?

Although judges have traditionally seen themselves asdeclaring or finding rather than creating law, and frequentlystate that making law is the prerogative of Parliament, thereare several areas in which they clearly do make law.

In the first place, historically, a great A! of our law is andalways has "een case law made "y judicial decisions.#ontract and tort law are largely judge$made, and many ofthe most impor tant developments $ for e%ample, thedevelopment of negligence as a tor t $ have had profoundeffects. ven though statutes have later "een passed on

these su"jects, and occasionally, Parliament has attemptedto em"ody whole areas of common law in statutory form,these still em"ody the original principles created "y thejudges.

&econdly, the application of law, whether case law orstatute, to a particular case is not usually an automaticmatter. 'erminology may "e vague or am"iguous, newdevelopments in social life have to "e accommodated, and

the procedure requires interpretation as well as application.As we have suggested, judicial precedent does not alwaysmake a particular decision o"vious and o"ligatory $ theremay "e a conflicting precedent, their implications may "eunclear, and there are ways of getting around a precedentthat would otherwise produce an undesira"le decision. If i tis accepted that (lackstone)s declaratory theory does notapply in practice, then clearly the judges do make law,rather than e%plaining the law that is already there. 'he

theories advanced "y *airys, +riffith and aldron all acceptthat judges do have discretion, and therefore they do tosome e%tent make law.

here precedents do not spell out what should "e done in acase "efore them, judges nevertheless have to make adecision. 'hey cannot simply say that the law is not clear

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and refer it "ack to Parliament, even though in some casesthey point out that the decision "efore them would "e moreappropriately decided "y those who have "een elected tomake decisions on changes in the law. 'his was the case in

Airedale - & 'rust v (land /01123 where the ouse of !ordsconsidered the fate of 'ony (land, the foot"all supporter leftin a coma after the ills"orough stadium disaster. 'he courthad to decide whether it was lawful to stop supplying thedrugs and ar tificial feeding that were keeping 4r (landalive, even though it was known that doing so would meanhis death soon afterwards. &everal !aw !ords made it plainthat they felt that cases raising )wholly new moral andsocial issues) should "e decided "y Parliament, the judges)

role "eing to )apply the principles which society, through thedemocratic process, adopts, not to impose their standardson society.) -evertheless, the courts had no option "ut tomake a decision one way or the other, and they decided thatthe action was lawful in the circumstances, "ecause it wasin the patient)s "est interests.

'hirdly, our judges have "een left to define their own role,and the role of the courted generally in the political system,more or less as they please. 'hey have, for e%ample, giventhemselves the power to review decisions of any pu"lic"ody, even when Parliament has said those decisions are notto "e reviewed. And despite their frequent pronouncementsthat it is not for them to interfere in Parliament)s law$makingrole, the judges have made it plain that they will not, unlessforced "y very e%plicit wording, interp ret statutes asencroaching on common law rights or judge$made law. 'heyalso control the operation of case$law without reference toParliament5 an o"vious e%ample is that the 0116 Practice&tatement announcing that the ouse of !ords would notlonger "e "ound "y its own decisions, which made case lawmore fle%i"le and there"y gave the judges more power, wasmade on the court)s own authority, without needingpermission from Parliament.

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'he ouse of !ords e%plained its approach to judicial law$making /which is likely to "e the same for the &upreme#ourt3 in the case of # /A minor3 v PP /01173, which raisedthe issue of children)s lia"ility for crime. 'he common law

defence of )doli incapa%) provided that a defendant aged"etween ten and fourteen could "e lia"le for a crime only ifthe prosecution could prove that the child knew that what heor she did was seriously wrong. 8n appeal from themagistrates) court, the ivisional #ourt held that thedefence was outdated and should no longer e%ist in law. Anappeal was "rought "efore the ouse of !ords, arguing thatthe ivisional #ourt was "ound "y precedent and not a"le tochange the law in this way. 'he ouse of !ords agreed, and

went on to consider whether it should change the law itself/as the 0166 Practice &tatement allowed it to do3, "utdecided this was not an appropriate case for judicial law$making. %plaining this decision, !ord !owry suggested fivefactors were important5

03 here the solution to a dilemma was dou"tful, judgesshould "e wary of imposing their own answer9

:3 ;udges should "e cautious a"out addressing areas whereParliament had rejected opportunities of clearing up aknown difficulty, or had passed legislation without doing so9

23 Areas of social policy over which there was dispute wereleast likely to "e suita"le for judicial law$making9

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guidelines. =or e%ample, in an important criminal case of > v ica /: v #larence /0@@@3, and held that criminal lia"ility could "eimposed on a defendant for recklessly infecting another

person with I . 'his change in the law was made despitethe fact that the ome 8ffice had earlier decided thatlegislation should not "e introduced which would haveimposed lia"ility in this situation $ ) iolence5 >eformed the8ffences Against the Person Act 0@60, /011@3. 'he ome8ffice had o"served that )this issue had ramifications going"eyond the criminal law into wider considerations of socialand pu"lic health policy.)

&ome commentators feel that the judiciary)s curr entapproach is tending to go too far, and straying outside itsconstitutional place. riting in the )-ew !aw ;ournal) in0111, =rancis (ennion, a former parl iamentary counsel,criticised what he called the )growing appetite of somejudges for changing the law themselves, rather than waitingfor Parliament to do it.) (ennion cites two cases ase%amples of this. 'he fir st, *leinwort (enson !imited v!incoln #ity #ouncil /011@3, concerns contract law, and inparticular, a long$standing rule, originating from case law,that where someone has made a payment as a result of amistake a"out the law, they did not have the right to get the48- B "ack. 'he rule had e%isted for nearly two centuries,and "een much criticised in recent years $ so much that aprevious !ord #hancellor had asked the !aw #ommission toconsider whether it should "e amended "y legislation, andthey had concluded that it should. 'his would normally "etaken "y the courts as a signal that they should leave theissue alone and wait for Parliament to act, "ut in this case,the !ords decided to change the rule. In doing so, !ord *eithe%pressed the view that )a ro"ust view of judicialdevelopment of the law) was desira"le. (ennion argues that,in making this decision, the !ords were usurping theauthority which constitutionally "elongs to Parliament. ealso points out that judicial, rather than Parliamentary

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change of the law in this kind of area causes practicaldifficulties, "ecause it has retrospective effect9 a largenum"er of transactions which were thought to "e settledunder the previous rule can now "e reopened. 'his would not

usually "e the case if Parliament changed the law.

'he second case (ennion criticises is PP v ;ones /01113,which concerned a demonstration on the road near&tonehenge. In that case, the !ords looked at another long$held rule, that the pu"lic have a right to use the highway for)passing and repassing) /in other words, walking along theroad3, and for uses which are related to that, "ut that thereis no right to use the highway in other ways, such asdemonstrating and picketing. In ;ones, the ouse of !ordsstated that this rule placed unrealistic and unwarrantedrestrictions on everyday activities, and that the ighway is apu"lic place that the pu"lic has a right to enjoy for anyreasona"le purpose. 'his decision clearly has majorimplications for the powers of the police to "reak updemonstrations and pickets.

(ennion argues that, in making decisions like these, thejudiciary are taking powers to which they are notconstitutionally entitled, and that they should not e%tendtheir law$making role into such controversial areas.