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 [47]:

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:

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.