Judge-Made Law & Principles of Statutory Interpretation

Judge-made Law and Principles of Statutory Interpretation

In the English law, the concept of judge-made law is contentious and controversial. The English legal system demonstrates the application of the principle of parliamentary sovereignty to the extent that even the judicial review is not permitted over statutory law, 1 and even where judicial review is done over executive action, it is done to support the parliamentary legislation, leaving little scope for original law making for the judges. Judicial role has become more attuned to interpreting law in context of Parliamentary intention and accordingly, the rules of statutory interpretation are used by the judiciary to perform its function.

Conversely, common law itself is seen as a judge made law as opposed to statute, which is law made by the Parliament. 2 This essay takes the position that judges do make the law from time to time but even when they do they apply statutory interpretation principles in order to show that the construction given by them is to give effect to Parliamentary intention.

The English judiciary has used the literal rule of interpretation in order to ensure that the intention of the Parliament is given effect by it. In Sussex Peerage Case, 3 the court held that the only rule for the construction of statutory law, is that it should be construed according to the Parliamentary intent. Furthermore, if the statute is precise and unambiguous, then the natural and ordinary sense of the words be construed. 4 However, there may be places where the statute is imprecise and ambiguous, or where the ordinary and natural meaning leads to absurdity. In such situations, the judiciary applies the golden rule as laid down by Lord Wensloydale in Grey v Pearson, 5 wherein he wrote that in cases of natural meaning leading to absurdity or some repugnance with the rest of the instrument, then the meaning may be modified, so as to avoid that absurdity and inconsistency. However, again the golden rule emphasis that the intention of the Parliament must be given effect to and such intention can be seen running through the rest of the statute. In other words, the statute still serves as a guide to interpreting the ambiguous provisions. There is no scope here for the judge-made law.

The settled principles of literal and golden rules of interpretation demonstrate a focus that is always on giving effect to the Parliamentary intention. The purposive statutory construction approach also focusses on giving effect to the true intentions of the legislature. 6 However, the purposive approach is very different from the literal construction approach. The purposive approach was described by Lord Browne- Wilkinson as the approach which seeks to give effect to the true purpose of legislation by looking at much more extraneous material that bears upon the background against which the legislation was enacted. 7

The judiciary has from time to time exercised a law making function in some cases. Therefore, the proponents of the original theory may find such support from Hunter v Canary Wharf 8 and Airedale NHS Trust v Bland. 9 In both of these cases, new principles of law were laid down by the court. In Airedale, the House of Lords allowed a declaration to lawfully discontinue life-sustaining treatment and medical support of a person who had been in a vegetative state for the past three years. This despite there not being lawful euthanasia allowed under common law. In another case, R v R the court held that a husband may be penalised for the offence of marital rape, interestingly when marital rape was not recognised as an offence by legislation or common law.

The adoption of the purposive construction approach may at times see the judiciary adapting a more flexible approach towards interpretation of statutes. Here, mention may be made of the rule of law principle, which allows for many constructions so that each judge may conceive of it in an individual manner. 11 Lord Bingham has actually identified eight components of rule of law, including international law. 12 In fact, Lord Bingham has said that the interpretation of the rule of the law is the task of the courts. 13 In that case, it would seem that the courts may apply principles of

interpretation in a manner which would give effect to a construction which gives primacy to the rule of law. In that case, it may be possible that courts do make law as well.

The use of the principle of rule of law to indirectly review the Parliamentary law or even lay down new principles of law is not a novel approach and it can be traced as far as as to Justice Coke’s judgement in Bonham’s case. 14 In more contemporary times, the rule of law is also used as certainty, wherein the focus of the law is to divert the uncertainty created by ambiguous statutory rules to a more certain construction because the law as a whole must produce certainty, even where there is uncertainty. 15

Lord Denning has used the approach in Magor and St. Mellons Rural District Council v Newport Corporation for filling the gaps and making sense of enactment. 16 Usually, judiciary has also adopted a circumstantial approach towards judicial lawmaking. In McLoughlin v O’Brian 17 , Lord Scarman observed that “the objective of judges is the formulation of principles; policy is the prerogative of Parliament.” In Duport Steel Limited v Sirs, Lord Scarman wrote:

“Parliament makes and unmakes the law; the judge’s duty is to interpret and apply the law, not to change it to meet the judge’s idea of what justice requires. Our law requires the judge to choose the construction which in his judgement best meets the legislative purpose of the enactment.” 18

In conclusion, the question as to whether judges do make the law or not has to be considered after considering the actual case law in the context of principles of statutory principles. The literal approach is used by the courts to give the natural meaning to the statutory provision, but the purposive approach allows a wider space to the judiciary, so that at times it does happen that judges make law.

• Duport Steel Limited v Sirs, [1980] 1 WLR 142.
• Magor and St. Mellons Rural District Council v Newport Corporation, [1950] 2 All ER 1226.
• McLoughlin v O’Brian, [1983] 1 AC 410.
• Grey v Pearson, (1857) 6 HL Cas 61.
• Hunter v Canary Wharf, [1997] UKHL 14.
• Notham v London Borough of Barnet, [1978] 1 WLR 220
• Pepper (Inspector of Taxes) v Hart [1993] AC 593.
• R v R, [1991] UKHL 12.
• Sussex Peerage Case, (1844) 11 Cl&Fin 85.
• Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568.

Bibliography

• Bennion F, Bennion on Statutory Interpretation (5th edition, LexisNexis 2008) Bingham, ‘The Rule of Law’, (2007) 66(1) The Cambridge Law Journal 67.
• Slapper G and Kelly D,The English Legal System (Oxon: Routledge 2009) Tremblay LB, Rule of Law, Justice, and Interpretation (MQUP, 1997)