10.1 Judges as legislators
If you think back to some of the exercises and cases considered over this course and the previous one, some of the situations seemed quite tricky. It was not always obvious what the legal rule should have been. Some other recent cases also challenge the idea that judges are merely declaring what the law should be. For example, in R (Smeaton) v SS Health,Footnote 14 Munby J had to decide whether prescribing the ‘morning after’ pill amounted to the offence of supplying poison to procure a miscarriage, contrary to the Offences Against the Person Act 1861.Footnote 15 Obviously anxious to avoid being seen to be making law, he wrote :
The issue which I have to decide is not whether the sale and use of the morning-after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable. What I have to determine is whether it may constitute an offence under the 1861 Act.
The commentator David Kelly (2020, p. 515) is scathing about these words, writing: ‘With the greatest of respect to Munby J, what he seeks to avoid is exactly what he is forced to do in making his ‘legal’ decision.’ (Munby J eventually ruled it was not a crime.)
In the present day, the pendulum has swung back the other way, such that many now accept that judges make law. For example, Lord Reid writes:
There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tales any more.
If judges make law, then common law is at least partially retrospective, and therefore unfair. Bentham’s solution was to do away with the common law and attempt to codify the law in its entirety. It is fair to say that parliament legislates more than it did when most people believed in the declaratory theory of law. At the same time, present day judges are less interventionist. Where there seems to be a problem with the law, they are not always happy to set out a solution. Instead they sometimes refuse to act, saying it is a matter for parliament. For example, in R (Nicklinson) v Ministry of Justice Footnote 16 the appellants suffered from debilitating conditions and wanted to commit suicide, but were unable to do so without help. While it is not a crime to commit suicide, it is a crime to assist. The appellants sought declarations of incompatibility under the Human Rights Act 1998. The majority of the court thought that they had the power to give a declaration of incompatibility, but refused to do so, saying that the issue was one for parliament, not the courts.
Activity 8 Do judges make law?
1. Submit your response to the following question:
2. In the box below, type your response to the following question, explaining why you think the way that you do.