|
Featured Papers from Direct Essays
|
|
|
|
|
|
This is a preview of a paper to view the full text you need to signup and login.
|
Judicial creativity
|
|
|
"There was never a more sterile controversy," said Lord Radcliffe in 1968, "than upon the question whether a judge makes law. Of course he does. 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. They do this in a variety of ways. Judges inevitably make law in a sense whenever they interpret a statute or a piece of delegated legislation. According to the American realist John Chipman Gray (1839-1915), all law is made by judges and even a statute does not actually take effect as law until it is interpreted and applied by decisions of the courts. Often the interpretation is uncontroversial, but occasionally it can lead to results quite different from those which Parliament (and others) might have expected. Anisminic v Foreign Compensation Commission [1969] 1 All ER 208, HL DD had a duty under the Foreign Compensation Act 1950 to determine the compensation payable to those whose property had been lost when the Egyptian government nationalised the Suez Canal in 1956. Under s.4(4) of the Act, no determination of the Commission was to be called in question in any court of law. PP's claim was rejected, and PP sought judicial review. The House of Lords held by a majority that review was available, and quashed DD's decision. Since DD had erred in law, they had acted ultra vires and it followed that their purported determination was no true determination at all. Royal College of Nursing v DHSS [1981] 1 All ER 545, HL The Abortion Act 1967 made it lawful under certain circumstances for a pregnancy to be "terminated by a registered medical practitioner". At that time, surgery was the only usual method of termination, but subsequent advances in medical technology made it possible and generally preferable to induce the expulsion of the foetus by means of drugs. The DHSS advised in a circular that nurses and midwives carrying out this procedure (under the general supervision of a doctor) would have the protection of the Act, but the RCN sought a declaration that this advice was wrong and that nurses could not therefore be expected to administer the drugs. The House of Lords (3-2) reversed the Court of Appeal (2-1) and restored Woolf J's ruling that the advice was correct. The majority adopted a purposive approach: the Act was clearly meant to legitimise therapeutic abortions and to ensure that they were carried out under properly hygienic conditions. The section should therefore be given a broad interpretation rather than the narrow literal interpretation favoured by the minority. Secretary of State v Guardian Newspapers [1984] 3 All ER 601, HL A clerk in the Foreign Office leaked confidential documents to The Guardian, and the Government demanded the return of the documents so that they could identify the person responsible and take appropriate action. The Contempt of Court Act 1981 said a journalist could not be compelled to identify sources unless it was "necessary in the interests of national security"; this particular disclosure was harmless, but the House of Lords said it was necessary in the interests of national security that the government should be able to identify and deal with any civil servant leaking confidential documents to the press. Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705, HL Reversing the Court of Appeal, the House of Lords (Lords Slynn, Nicholls and Clyde, Lords Hutton and Hobhouse dissenting) held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988.
|
|
|
To link to this page, copy the following code to your site:
|
|
Paper Information
|
|
|
Title: Judicial creativity
Words: 3055
Rating: None
Pages: 12.2
submitted by: jimmyb
If you think this paper shouldn't be here then
|
|
|
|
|
Signup & Login
|
|
|
If you don't currently have a login then Signup here
|
|
|
|
|
Pre-Written Papers
|
|
|
|
|
|
|
|
Custom Papers
|
|
|
|
|
|
|
|
