How can he help it?" Similarly, Lord Reid in a speech entitled "The judge as lawmaker", 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." There can be no doubt that Lord Radcliffe and Lord Reid were right, and that judges do make law and even change the law from time to time. The extent of this creativity is displayed in a variety of ways. Judges inevitably make law in a sense whenever they interpret a statute or a piece of delegated legislation.
It exists to look at each statutory instrument in detail to make sure that it falls within the boundaries set by the Parent Act and to refer provisions requiring further consideration to both Houses of Parliament. The main reasons for referring a statutory instrument back to the Houses of Parliament are that it appears to have gone beyond or outside the powers given under the Parent Act, it has not been made according to the method stipulated in the Parent Act, unexpected use has been made of the delegated power, it is unclear or defective, it imposes tax or charge (only Parliament has the right to do this) or it is retrospective in its effect, and the parent/enabling Act did not allow for this. This is probably one of the more effective controls, as many statutory instruments are subject to some scrutiny. However, it is impossible for the Scrutiny Committee to review all the statutory instruments because over 3000 are created each year. Another control is the enabling Act or the parent Act.
The constitutional role of the judiciary is to apply the law that parliament makes, as said by Lord Diplock in Dupont V steel (1980), ‘Parliament makes the laws, the judiciary interpret them’. However, judges have the power to change rules or make new rules through precedent or statutory interpretation, as mentioned in R V Sigsworth (1935) by Lord Denning, ‘We fill in the gaps’. The doctrine of precedent is based on the requirement that judges must follow decisions made in earlier cases (stare decisis), and on the face of it would seem to limit their freedom to be creative. First of all, there is the hierarchy of the courts, which means that courts are bound by decisions of other courts higher up in the hierarchy. Although with the use of the 1966 Practise Statement, the Supreme Court is allowed to depart from its own earlier decisions, as for example in Hetherington v British Rail and Shivpuri and also in R V Gemmell and Richards (2003) where the Supreme Court overruled the decision in Caldwell by using the 1966 Practise Statement.
“We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used” Per Lord Reid in Black Clawson Int v Papierwerke Waldhof Aschaffenburg (1975) AC 591 In light of Lord Reid’s quote, analyse how the judiciary interpret Acts of Parliament. Parliaments passed statutes every year and the meaning of the law in these statutes should be clear and explicit but this is not always achieved. Although legislations are composed by Parliament, it is left to the courts to interpret provisions and give meaning to them. Statutes are drafted by the Parliamentary Counsel who are a group of individuals who are skilled in law, however some legislation are still obscure and words are found to be ambiguous and it is for the judge to discover the intentions of Parliament.
The British constitution is still visible and it defines composition and powers of the main offices and institutions of the state. An uncodified constitution based on conventions has the advantage of being extremely adaptable or flexible. Since it is unwritten, it can be changed easily to deal with new situations. All that is necessary for the practises to be changed is for Parliament to agree that change is necessary. Old constitutional practises do not become 'millstones' that make it difficult to deal with changed circumstances.
Discuss the meaning of justice and consider whether justice is achieved in English Law (30 marks) There is an argument within the English Legal System as to the degree of convergence between law and Justice and its effects on the system. Law is a set of standardised procedures that regulate society and enforce basic rights. It was defined by John Austin as ‘the command of a sovereign enforced by a sanction’ and by Sir John Salmond as ‘the principles used in the administration of justice’. Laws are created by Parliament (the sovereign power). An example of a law created by Parliament is s.18 GBH under the Offences Against the Persons Act 1861 which carries a sanction of up to life imprisonment.
This concept entails an understanding of what the “problem of language” is and how the judges use the various methods at their disposal to eliminate the confusion surrounding the wording of a statute and to grasp what the Parliament had intended with the passing of a particular Act. The concept is of great antiquity and is a practice carried out by the judges whereby they use legal reasoning and arguments along with the aid of a variety of approaches to interpret the act in question. Three different approaches to interpretation are employed by the judiciary in deciphering a statute: Literal rule, Golden rule and Mischief rule. The literal rule as the name suggests asserts that the judges should only give the wording of the act their plain and ordinary meaning and should not indulge in going beyond the actual meaning of the word in interpreting the act. The rule is readily applied to any and all statutes that come into force as it is considered by the parliament to promote certainty.
–Clear definition of constitution, list some of the strengths and weaknesses in your introduction A strength of Britain having an uncodified constitution is that its nature is flexible. Meaning that the government is not limited with their ability to change governing arrangements by having to go through a lengthy and complex and procedure, as the USA have to go through to just change something within their constitution, as such their constitution has only been changed 27 tines altogether since it was created in 1787. As a result the labour party were able to bring the European Convention on Human Right into British law in 1998 with the Human Rights Act. Cameron will also be able to repeal the Human Rights Act is wants to and replace it with a British Bill of Rights, due to Dicey’s rule of law Don’t you mean his view of parliamentary supremacy?) which is one of the sources of the constitution with one of the three rules being that no Parliament is able to bind a future Parliament.
This section helps judges discover the exact meaning put upon the word by Parliament. The final Intrinsic Aid is the schedules which can be found in the back of the Act, the schedule cannot always be used to help find the true meaning of the Act unless specifically referred to within a section. The schedule provides additional information surrounding the Act and its intentions. Extrinsic Aids are any references that are not concealed within the act that is being interpreted. The most common External Aid which is also used within everyday life is a Dictionary.
History/Mr. Bedard Exam 2 October 12, 2010 Constitutional Interpretation Constitutional interpretation, or constitution construction, is the term most often used by our founding fathers. It is the process by which meanings are assigned to words in the constitution to enable legal decisions to be made that are justified by it (Lecture). The two main classifications of constitutional interpretation are known as strict construction and loose construction. Strict construction is the literal interpretation of the words of the constitution as they are written, while as loose construction is the contextual interpretation of the words of the constitution (Notes).