Perception, Biases & Magna Carta

On Judiciary & the Perception of Biases

Lord Denning said:

“…in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal or whoever it may be, who sits in a judicial capacity.

“It does not look to see if there was a real likelihood that he would, or did in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.

“Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

“Nevertheless there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court would not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough.

“Justice must be root in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”

See: Metropolitan Properties Co (FGC) Ltd v Lennon (1969) 1 QB 577

Source: NST, Oct 12, 2008; Zainur Zakaria, Opinion Column, pg 23


To No One Shall We Deny Justice

Let Magna Carta Be Our Beacon Of Justice

Lord Denning said:

“…when the state itself is endangered, our cherished freedom may have to take second place.”

Lord Bingham said:

“Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms.

“There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.”

Magna Carte C. 38:

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

C. 39:

"To no one will we sell, to no one deny or delay right or justice.”

See: Lord Denning in R v Secretary of State (Home Department) ex parte Hosenball (1977)

Source: NST Oct. 12, 2008; Roger Tan, Opinion Column, pg 22


On the Risk of Negative Perception

“It does not matter whether perception is right or wrong. It is a negative perception and if not addressed it will harden into reality. Once people lose their trust and confidence in institutions, the country cannot function properly.

"People must believe in the effectiveness of the judiciary and law enforcement agencies. They must believe that the government is serious about fighting corruption.

"What I am trying to do is to formalise these changes.”

Statement made by the Prime Minister Abdullah Ahmad Badawi
October 12, 2008, NST, Prime news, pg 4

Haidar: "Don't be like that, Lah!"

Don't do like that lah

Commission chairman Tan Sri Haidar Mohamed Noor said it was unwise for Anwar to release the clip on an instalment basis.

"Don't do it like that. We have a job to do here. Please tell your client that we cannot be dancing to his tune," he told Counsel M. Puravalen, who is representing Datuk Seri Anwar Ibrahim

Another commission member, Datuk Mahadev Shankar, said previously Anwar had broadcast the two earlier clips to the entire world.

"Now, he wants to share it with us," Mahadev said.

Businessman Loh Mui Fah said in a statement yesterday that he had asked his son Gwo Burne, who recorded the video, to do everything possible to recover all records of it.

The Commission of Inquiry to the Lingham's Video is getting insidious with the release of the 3rd installment of the video clips by Anwar Ibrahim.

It could possibly strike fear on many others, as slowly one by one of those in high places are implicated in the high profile scandals.

First, it was ex-CJ Fairuz; then it;s another ex-CJ Eusoff Chin. The exposure implicate names such as Mahathir, Tengku Adnan, Vincent Tan, ex-A-G Mohtar Abdullah.

Now, even our most honest CJ Dzaiddin is implicated. Who else have not?

Oh my dear, even Lawyer Robert Lazar's name has been added to the list.

I think it's putting fear into the commission members.

Did any members of the commission suffers nausea?

Read this joke:


Lawyer True Story

In a trial, a Southern small town prosecuting attorney called his first witness to the stand.

The witness was a grand motherly, elderly woman.

He approached her and asked, "Mrs.Jones, do you know me?"

She responded, "Why, yes I do know you, Mr. Williams. I've know you since you were a young boy,and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, you manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you. "

The Lawyer was stunned.

Not knowing what else to do, he pointed across the room and asked,"Mrs. Jones. do you know the defense attorney?"

She again replied, "Why yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted and he has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women, one of them was your wife. Yes, I know him."

The defense attorney almost died.

The judge asked both counselors to approach the bench, and in a very quiet voice, said,

"If either of you guys asks her if she knows me, I'll throw you in jail for contempt." ........

Human Rights Act 1998

Human Rights Act 1998

UK is one of the original signatory of the European Conventions of Human Rights 1950(ECHR). It only came into effect in October 2000 when the Parliament passed the Human Rights Act 1998, giving effect to the main provision of the Convention rights in domestic law.

Prior to HRA 1998, Convention rights was only a persuasive authority in which the courts were not bound to give effect to Convention rights. When interpreting a provision, it would be presumed that Parliament had not intended to legislate in breach of treaty obligation.

This can be seen in the case of R v Secretary of State Home Dept exp Brind where the Hous eof Lords held that public bodies exercising discretion were not bound by ECHR terms as a precondition of acting ultra virus. The House of Lords recognised that 'to accept such a contention would amount to incorporation of ECHR via the back door.

Hence, litigants frequently had to take their cases to Strasburg for redress.

HRA 1998 is one of the most revolutionary pieces of legislation to be passed in the UK, to rank alongside the Bill of Rights, the Act of Union & the ECA. It was first introduced by the Labour Party in their manifesto of 1997 and subsequent white paper, “Bringing Rights Home’ to conclude that monumental change.

The HRA 1998 which came into effect in October 2000 finally incorporated the provisions of the Convention rights into domestic law.

Human Rights protection represents significant increase in individual rights. We cannot deny its fundamental importance. The clue to the status of Human Rights lies in the manner in which ECHR was incorporated into the UK law.

This was achieved without upsetting the delicate balance of constitutional arrangements built around the doctrine of Parliamentary Sovereignty.

In HRA 1998:

- S. 1(2) provides that in any ruling in the Convention, the court must ‘take into account’ the judgment of the European Court of Human Rights.

- S. 3 place a requirement on primary and secondary legislation to be read to give effect in a manner consistent with the Convention.

- S. 4 states that if legislation is to be incompatible with convention rights, the court is to make a declaration of incompatibility. However, it did not give the court the power to set aside an Act of Parliament which is inconsistent with Convention rights, but merely to allow certain courts to make a declaration of incompatibility which would basically serve notice to the legislators to make amendments.

-S. 6 makes it unlawful for a public authority to act in a way which is incompatible with convention rights.

- S. 7 allows a person who claims that a public authority has acted unlawfully, to bring proceedings against the authority.

- S. 19 requires a Minister to make a declaration of compatibility or otherwise, with ECHR for any legislature before the 2nd. Reading.

Essentially, while the UK had been an early signatory (1950) of the European Convention of Human Rights (ECHR), there was no means to redress in the domestic courts. Consequently, if a UK citizen believes his right had been encroached, he was forced to take action in Strasbourg. This is not to deny the existence of rights protected in English law protects the rights of individuals. (Example of existing statutory protection: Habeas Corpus, Police & Criminal Evidence Act 1984, Public Order Act 1986 (Freedom of assembly), Defamation Act 1996 (Freedom of expression).

What is found to be lacking until the enactment of HRA was a systematic Bill of Rights to be enforceable in domestic courts, which contained all the rights that an individual might enjoy under the law. Instead, UK citizen has been required to depend upon a body of statutes and the interpretation of that statute through case law.

Critics of English situation before 1998:

1. In the absence of a Bill of Rights, it is difficult for the individual to know the extent of his rights and how they may be enforced.
2. The level of protection afforded by the Pre-1998 regime. While action could be taken against the State, for breach of human rights, the level of those rights was often lower than the level of protection provided in the ECHR.

Incorporation of the ECHR into domestic law by the HRA has been considered revolutionary because it has most of the ECHR rights more directly applicable. Prior to incorporation, a UK court is bound by the presumption that when there is a conflict between ECHR and domestic law, the later must prevail (see: R v Secretary of Home Dept ex parte Thakrar & R. v Secretary of Home Dept. ex parte Brind)

The HRA has strengthened the place of HR in UK on the various key aspects:

1. By requiring Ministers to make a statement of compatibility (or otherwise) before the 2nd. Reading of a Bill.
2. By permitting courts to declare any existing legislation to be incompatible and providing for it to be speedily amended by Order of the Council. (Note: There is no positive obligation on a Minister to amend incompatible legislation although there will be political pressure).
3. The requirement under s.6 for public authorities to act in a way that is consistent with Convention rights. (Note: Breach of convention rights will be challenged under the domestic judicial review. Case ref: R. v Secretary Home Dept ex parte Daly).
   
   HRA 1998 had been recognised as a constitutional statute. This means that it is not subjected to the process of implied repeal. If a later statute appears to conflict the HRA 1998, the court would only give effect if it is express stated in the Act. In addition, ministers presenting a Bill of Parliament is obliged to make a statement that it is Convention compliant.
   
   The courts have been effective in implementing these Convention rights as accorded. Administrative actions that interferes with fundamental rights will no longer be able to hide behind as argument that they were not irrational.
   
   Litigants now do not need to go to Strasbourg to argue Convention points as they can now do so in domestic courts.
   
   Recent judicial events indicate that the judiciary are now more robust to defend and safeguard human rights by utilising s.3 HRA as a radical tool. This can be seen in the case of R v A (2001) where Lord Steyn did not declare the Youth Justice Criminal Evidence Act 1999 as incompatible (as per s. 4 HRA) but proceeded to declare s. 41 of the Act as 'too widely drafted and had made excessive inroads into the rights for a fair trial (Article 6 ECHR). Lord Steyn remarked that, as the Parliament had legislate to 'Bring Rights Home' from ECHR to UK courts, those rights could only be 'effectively brought home' if s. 3 HRA was the prime remedial measure and s. 4 is the measure of last resort.
   
   An important point to note is that the HRA 1998 had been effective to provide better protection for individual rights because it has build an awareness of human rights that permeates all aspects of decision-making. The courts have also assumed as the guardian of human rights.
   
   Given the extent to which the HRA has embedded rights within the English law, there can be no doubt that it is revolutionary statute. It must also be observed that there are also weaknesses in the system – the ability to pass incompatible legislation or refuse to amend such legislation by the Ministers. The HRA 1998 has not been accorded a 'special' or higher statute. Its existence and scope remains subject to the will of Parliament.
   
   In conclusion, although the HRA does not provide any constitutional guarantee such as the Bill of Rights, it does however try to give precedence to Convention rights to the extent that it is consistent with continuing Sovereignty of Parliament.
   
   
   
   
   The extent of HRA seen as entrenched Bill of Rights
   
   In accordance with the Doctrine of Parliamentary Supremacy, Parliament cannot bind its successors. So the HRA could arguably be validly repealed.
   
   - Lord Denning in McCarthy’s v Smith & Lord Diplock in Garland v British Rail & Engineering Ltd believes that Parliament had the power to repeal.
   
   - HRA is probably not entrenched and considered as a Constitutional Bill of Rights.
   
   - Political reality means that it is unlikely to be repealed.
   
   In HRA, various provisions fall short of that provided by ECHR.:

   1. Crucially, Article 13, the right to an effective remedy is not incorporated (no domestic remedy).
   2. It is seen particularly, in a declaration of incompatibility which – while it may tend to legislative change – it is not necessary to do so. There is no express requirement on a Minister to amend legislation. At such, if primary legislation is declared incompatible, it may still remain active on the statute book.
   3. Article 6 provides strong protection. There is growing body of case law to show how courts are now taking proper cognizance of human rights in application of judicial review (see: R. v Ministry of Defence ex parte Smith & R. v Secretary Home Dept ex parte Daly)

   
   The fact that courts are themselves public bodies and will therefore need to be mindful of their obligations under the HRA and ECHR when ruling on disputes.
   
   Conclusion
   
   All of these limitations are not to acknowledge that the HRA has had a profound impact of the development of domestic law. In summary, the evidence of case law is that the HRA is having an impact and by the development of precedent some of the essential freedoms and rights of the ECHR are being embedded into domestic law.
   
   

Judicial Precedent - ELS

Question 1:

People want 2 consistent things:

1. That the law shall be certain, and
2. That it shall be just and move with times

Rigid adherence to precedents will do. Paying lip service to precedent, while admitting the fine distinctions gives us the worst of both worlds.

On the other hand, too much flexibility leads to intolerance and uncertainty.

Discuss.



Answer guide:

1. What is precedent? Explain stare decisis.
2. Law made by judges – compare with parliament – the ultimate body that makes law – the people who are elected by the voters – whereas, judges are unelected.
3. How is precedent said to be certain?
4. Like cases are supposed to be treated alike – this in certain ways achieves certainty. Why?
5. Similar facts – similar decisions are supposed to be made by judges; but what’s the problem? Judges when making decisions have choices – what are the choices available to them?

• They can follow previous cases
• Distinguish
• Overrule
• Reverse
• Disapprove

6. Judges often try to distinguish cases that the end results is sometimes illogical.
7. So how can the law be certain when judges are allowed to distinguish and make their own decisions which will then result in uncertainties?

8. Is there strict adherence to precedent by judges?
9. HL (1966) Lord Gardiner issued a practice statement – that HL can depart from their own previous decisions of which they had previously bounded by them (see: London Tramways Co Ltd v London Borough Council)

10. But do they do so? Initially No (see: R v Kansal; R v Lambert)
11. Later, they were more prepared to apply the practice statement (1966)
12. R v R – rape within marriages – wife no longer a property of husband.
13. Hall v Simons (2000) HL – refuse to follow earlier case of Randel v Worsley (1969) which had given barristers immunity against claims of negligence for their presentation of cases in court.

Court of Appeal (CA)

General rule – bounded by their own previous decisions – 3 exceptions

(i) Decisions made per incurium
(ii) 2 conflicting CA decisions
(iii) HL (implied) had overrule CA’s decision.

Dixon v British Broadcasting Corporation (1955)

- A decision on the construction of statutory provision was regarded as per incurium on the ground that other relevant provisions which threw light on the words in question had not been brought to the attention of the court.

Bonnlami v Home Secretary (1985)

- Failure to consider a statutory provision is one of the clearest cases in which the principles laid down in Young v Bristol Aeroplane, this court is not bound to follow its own decision.

Midland Banker Trust Co Ltd v Hatt Stubbs & Kemp

- Decline to follow decision of CA in Groom v Crocker on ground that inconsistent with subsequent decision of HL in Hedley Bryne Co Ltd v Heller & Partners Ltd.

14. But do judges really make laws?

15. What if there is no precedent laid down on principles or law for a new/novel case?

16. Judge will still have to come to a decision and they cannot say that they refuse to make a decision.

Donoghue v Stevenson

- Is the principle enunciated something new or is it a new principle or is it merely expanding or modified or altered to allow those who are not in a contractual relationship to claim remedies?

Hedley Bryne v Heller & Partners

- Is the case expressing a new point or principle or merely expanding it to cover economic loss? Bear in mind the principle was taken from the case of Donoghue v Stevenson.

- Look at the case of AIREDALE & RE: A (2002)

How are we to achieve consistency & certainty if judges are allowed to choose what mode they would want to use in deciding cases that come before them?

What do we achieve by having consistency and certainty in the law?

- Lawyers can plan ahead when advising their clients on whether they have a good or bad case and whether it should be litigated.

Flexibility

- Judges can make law. Changes in social policies and economic policies – these changes are faster than the parliamentary process of enacting legislation.

Uncertainty

- Ability of judges/judiciary to select which authority to follow through the use of ‘Distinguishing mechanism’.

So how do we actually achieve certainty?

- In the long run, this can only undermine a system which claims to operate on the basis of a hierarchy of binding precedent.

Conclusion

Weigh the advantage and disadvantages of flexibility, certainty and consistency against uncertainty, rigidity and inconsistency to see whether it has tilted the balance of convenience.

Broome v Cassell, Lord Hailsham (HL)

Principles: Exemplary Damages
Ratio Decidendi: Judicial Precedent & Usurpation of power by CA

“It is not open to the Court of Appeal to give gratuitous advice to judges to ignore decisions of the House of Lords in this way, if it were open to the court of Appeal to do so, it would be highly undesirable …the fact is, and I hope it will never be necessary to say it again that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier. Where decisions manifestly conflict, the decision in Young v Bristol Aeroplane offers guidance to each tier in matters affecting its own decision.”

(Note: Young v Bristol Aeroplane Ratio Decidendi – Guidelines on doctrine of judicial precedence and stare decisis)


Question 2:

Consider how the doctrine of binding precedent works in the English Court, having particular regard to its advantage and disadvantages.



Answer guide:

1. Define judicial precedent and explain how it operates with reference to the ratio decidendi and obiter dicta.

2. Emphasize the authoritative hierarchy of the Courts structure.

3. Mention the European Court of Justices and ECtHR.

4. Note that HRA 1998 requires courts in UK to take into consideration all previous decisions of ECtHR, which now becomes binding precedent to UK courts.

5. Explain and consider the difference between criminal and civil divisions of the Court of Appeal.

6. Refer to the process of ‘Distinguishing’ cases based on their facts.

7. Consider the advantages and disadvantages.

Judicial Precedent Defined

Judicial precedent means judges are required to follow the rule of law established in the previous decided cases of the court of equal status or higher, if the legal principle involved is the same and the facts are similar.

A later court can circumvent an inconvenient precedent which would otherwise be binding, by distinguishing it on the facts of the case or on the legal principles involved.

Judicial precedent is a system of law-making by judges rather than by parliament. The general applicable decisions made by the judges, referred to as precedents, are used as models for future cases, and these are developed on a case-by-case basis to establish the area of law.

There are two major tasks for judges when deciding cases:

1. To establish what the facts are (that is, what actually happened), and
2. How the law applies to those facts.

Once decision is made, a future similar case with similar facts from the same hierarchical courts or lower courts must be treated in the same way. The decided case will thus become the stare decisis for the future case decisions. Stare decisis basically means “to keep the decisions of the past cases”.

The only binding part of the decided cases is the “ratio decidendi”. In the judgment, the explanation of the legal principles and the rule of law are referred to as the “ratio decidendi”. The notion of ratio decidendi simply means “Reason for the Decision”. Most case laws are made by Appellant Courts and the House of Lords which ultimately set the stare decisis. Judge made laws are decisions concerning application of principles or related principles from litigation proceedings and through the process of appeals to the higher courts.

Other than the ratio decidendi, there may also be other comments made by the courts but not an essential part of the ratio decidendi. Such statements are called “Obiter dicta” (which means ‘things by the way’) and they do not form part of a ratio decidendi but are used as persuasive authority which the judges might take into consideration and adopt if they consider it appropriate to do so. A good example of a highly influential dictum is the statement by Lord Atkin in Donoghue v Stevenson [1932]. The dictum is clearly obiter, but had been adopted in subsequent cases (example: The Dorset Yacht case).

Because of the lack of official agreement as to what the ratio of each decided case actually denotes, it reflects uncertainty and therefore no consistency and certainty in law itself. Ratio is always a difficult concept because Common Law is surrounded by uncertainty about what is the correct view of the law. Judges also do not state outright the ‘Ratio’ of which his decision is based on, and it is for the person reading the case to determine what the ratio is.

Advantages of Binding Precedents

1. Consistency

This refers to the fact that ‘like cases will be treated alike and are not subjected to the whims and fancies of individual judges.

2. Certainty

Lawyers and their clients are able to predict what the outcome of particular legal questions is likely to be in the light of previous judicial decisions. Once the legal rule has been established in one case, individuals can orientate their behavior with regard to that rule, relatively secure in the knowledge that it will not be changed by some later or lower court.

3. Efficiency

Cases to some extent are predictable and save time of the judiciary, lawyers and their clients for the reason that cases do not have to be reargued. At such would be much less costly for the parties to the dispute or for the prosecution and defendants.

4. Detailed rules

Case laws respond to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics.

5. Flexibility

Law need to be flexible to meet the needs of the ever changing society and case laws can make changes faster than parliament. There are various mechanisms by means of which judges can manipulate the Common Law provide with an opportunity to develop law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.

Hayek argued that there should be less legislation and more case laws. This is because, if a ‘ratio’ of a binding precedent do not work, the later judges can abandon them and the law would develop in response to demand for justice.


Disadvantages of Binding Precedent

1. Complexities and voluminous

Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. Judgments are very long, and not readable and the ratio decidendi are difficult to find. It is also difficult to pinpoint clearly the appropriate principles laid by judges for each of the decision of each case.

2. Distinguishing by judges

Judges are allowed to distinguish a binding precedent on the case before them if they consider the principles of the binding precedent to be inappropriate. This leads to mass number of cases establishing different precedents in varying circumstances which further complicates the Common Law.

3. Unpredictability

If too many kind of illogical distinctions are made, it is impossible to make out which precedent will be applied.


4. Rigidity and fixity

Judges have to follow a binding precedent even though they think it is bad law or inappropriate. Bad judicial decisions may become ossified on the basis of an unjust precedent, with the consequences that previous injustices are perpetuated for a long time before another similar case gets to a court high enough to overrule them.

5. Unconstitutional

Case laws are judicial decisions and the fundamental question refers to the fact that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. Law reforms also give rise to the question as to how the law is to develop and change to cater for changed circumstances if cases are always to be decided according to precedent.

6. Dependence on chance

Case law changes only in response to those who had brought them through the various court hierarchies, that is, from High Courts to the Court of Appeals and then to the House of Lords. Only when a case is pushed far enough to the highest hierarchy of Appeal Courts would a new precedent be created.

The Authoritative Hierarchy of Court Structure

1. Reversing

A court higher up in the hierarchy can overturn a lower court’s decision on appeal.

2. Distinguishing

The main device for avoiding binding precedents is that of distinguishing. A case based on its own material facts, does not necessary had to follow a precedent case if judges wanted to avoid previous inconvenient decisions. This is possible when a court regard the facts of the case before it as significantly different from the facts of a cited precedent and thus consequentially, it will not find itself bound to follow that precedent.

3. Overruling

A court higher up in the hierarchy in a different later case can set aside a legal ruling established in a previous case. For example, the House of Lords are empowered to overturn or depart from its own previous decisions if the need arise. Overruling refers to the ratio of a case and not its decision. Overruling operates retrospectively, with the effect that the principle of law being overruled is held never to have been law. It has to be emphasized, however, that the courts will not shrink from overruling authorities where they see them as no longer representing an appropriate statement of law. This can be seen in the case of R v R [1992] which recognizes the possibility of rape within marriage. But Bellinger v Bellinger [2003] does also show that the courts’ are also reluctant to overrule cases and change the law where parliament is the appropriate forum for such change.

The European Court of Justice and ECtHR

The European Court of Justice (ECJ) is the judicial arm of the European Union (EU). In the field of community law, its judgment overrules those of national court. The ECJ decides whether any measures adopted, or rights denied, by the Commission, Council or any national governments are compatible with Treaty obligations. It also provides authoritative rulings, at the request of national courts, on the interpretation of points of Community law, under Art 234 of the Treaty of Rome. The European Court is not bound by its own decisions and it is always open to the ECJ to depart from its previous decisions when it considers it appropriate to do so. But its decision (ECJ) binds all European Courts, including the House of Lords in UK. The Human Rights Act 1998 (HRA) had incorporated the European Court of Human Rights (ECHR) into UK law, making the ECHR the supreme court in matters related to its jurisdiction.

Conclusion

The doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion. Following of precedent is easier in UK than in many other countries because England has a centralized legal system with only a small number of courts. The case law methods is sometimes said to be flexible. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament.

The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law. However this could be considered a disadvantage too as its very bulky and complex, making it increasingly difficult to find the principles of law for each case.

Case laws are practical in character. It is based on the experience of actual cases brought before the courts rather than on logic and theory.

The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.


Question 3:

“The effect of the doctrine of precedent is to render judicial decision-making a mechanical process. There is no room for judicial creativity at all.
Discuss.

Judicial precedent means judges are required to follow the rule of law established in the previous decided cases of the court of equal status or higher, if the legal principle involved is the same and the facts are similar.

According to the declaratory doctrine of common law, judges do not make law. There are, in Blackstone's word, "the depositories of the law, the living oracles, who must decided in all cases of doubt.

Judges express a part of the total, immanent wisdom of law which is assumed to be already existent before their decision. The judge works from within the law which is 'the repository of the experience of the community over the ages' (Postema 1986). Thus, even though the judge may reach a decision on a legal problem never before addressed by a common law court, he does so not as an original author of new legal ideas but as a representative of a collective wisdom greater than his own. He interprets and applies the law but does not create it, for the law has no individual authors. It is the product of the community grounded in its history.

The doctrine of the law is this: that precedents and rules must be followed, unless flatly absurd or unjust. But law, wiser than any individual is the perfection of reason, so an unjust or absurd decision cannot be declaratory of the law. It is not bad law but, in Blackstone's view, no law at all.

Once decision is made, a future similar case with similar facts from the same hierarchical courts or lower courts must be treated in the same way. The decided case will thus become the stare decisis for the future case decisions. Stare decisis basically means “to keep the decisions of the past cases”.

The only binding part of the decided cases is the “ratio decidendi”. In the judgment, the explanation of the legal principles and the rule of law are referred to as the “ratio decidendi”. The notion of ratio decidendi simply means “Reason for the Decision”. Most case laws are made by Appellant Courts and the House of Lords which ultimately set the stare decisis.

Other than the ratio decidendi, there may also be other comments made by the courts but not an essential part of the ratio decidendi. Such statements are called “Obiter dicta” (which means ‘things by the way’) and they do not form part of a ratio decidendi but are used as persuasive authority which the judges might take into consideration and adopt if they consider it appropriate to do so. A good example of a highly influential dictum is the statement by Lord Atkin in Donoghue v Stevenson [1932]. The dictum is clearly obiter, but had been adopted in subsequent cases (example: The Dorset Yacht case).

Thus, the act of complying with the doctrine of stare decisis results in case laws and judge-made laws, which becomes an important source of English Law. Judges have to follow previous decided cases of the court of equal status or higher. Stare decisis are therefore look at as being rigid and had been considered as mechanical. Judges have to follow a binding precedent even though they think it is bad law or inappropriate.

In the words of Prof Drewry, ‘An outdated precedent is a mummified corpse of long-dead social value.’ A rigid adherence to precedent does lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court.

While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Geoff, ‘the law must be developed by judges and jurist in partnership.

In the practice statement (Judicial Precedent) 1996, their Lordships regard the case of precedent as indispensable as it provides at least some degree of certainty. Nevertheless, their Lordships recognize that too rigid adherence to precedent may lead to injustice which may unduly restrict the proper development of the law. While treating former decisions as binding, the HL may depart from any decision, when it appears it right to do so. However, this announcement is not intended to affect the use of precedent elsewhere than in the HL. Although this practice of departure was used sparingly, however, it had been seen that the HL had departed where the conditions in their earlier decisions no longer prevail or in modern conditions the law ought to be different (example: Miliangos v George Frank, R v Shirpuri, & Arthur JS Hall v Simons).

Nevertheless, instead of departing, the HL may distinguish an unpopular precedent (see: Conway v Rimmer).

There are various mechanisms by means of which judges can manipulate the Common Law to provide with an opportunity to develop the law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.

Hayek argued that there should be less legislation and more case laws. This is because, if a ‘ratio’ of a binding precedent does not work, the later judges can abandon them and the law would develop in response to demand for justice.

Although the doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion, the case law methods is sometimes said to be more flexible as they are practical in character.

It follows that the doctrine of precedent - the doctrine that judges must treat as binding on them the essential legal grounds of decision adopted in similar cases previously decided in courts of higher or perhaps equal status - is complex in classical common law thought. It is perhaps much more flexible than it is typically portrayed as being (Lobban 1991).

Case laws have shown to have responded to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics. They are based on the experience of actual cases brought before the courts rather than on logic and theory. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament. The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law.

However this could be considered a disadvantage too as its very bulky and complex, making it increasingly difficult to find the principles of law for each case.

The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.



Question 4: ZONE A, 2004

The doctrine of precedent has a dual function; it provides an image of certainty, consistency and clarity, while allowing the common law to continually adapt and develop. Discuss.


Judicial precedent means judges are to follow the rule of law of previous decided cases of the court of equal or higher. It also means: ‘like cases are to be treated alike.’ The decided cases will thus become the stare decisis for future case decisions.

The only binding part of the stare decisis is the ratio decidendi in the judgment which is the legal principles and the rule of law. Other than the ratio, there may also be other comments made by the judge which is referred to as the ‘obiter dicta’, which means: ‘things by the way’. They do not form part of the ratio but are used as persuasive authority which judges might take into considerations and adopt if they consider appropriate. A good example is the highly influential dictum of Lord Atkin in Donoghue v Stevenson (1932) on the neighbourhood principles. This principle had been widely adopted in subsequent cases (example: The Dorset Yacht case).

In essence, Judicial Precedent doctrine refers to the fact that a decision of a higher court will be binding on an equal or lower court. The House of Lords stands at the summit of this hierarchy and its decisions are binding on all courts. The next court in the hierarchy is the Court of Appeal, and further down are the Divisional Courts, High Courts, Crown Courts, County Courts and Magistrate Courts.

On joining the European Union, UK is now also subjected to EU laws. In other words, EU laws supercede any existing UK laws on the contrary. That is to say, the ECJ is superior to the House of Lords and its decision is binding on all UK courts. Also, as a consequence of the HRA 1998, the convention rights of ECHR are now part of the jurisprudence of the UK courts.

If ‘like cases are to be treated alike’, the on that basis, the law reflects consistency and clarity. It provides a firm foundation that permits lawyers and citizen to plan their affairs with confidence. It cut short legal arguments and enables lawyers to forecast the outcome of their clients’ cases with reasonable certainty in the light of established precedence.

Thus, the act of complying with the doctrine of stare decisis results in case laws and judge-made laws, which becomes an important source of English Law. Because judges have to follow strictly previous decided cases, adhering strictly to stare decisis are therefore look at as being too rigid and had been considered as mechanical. Judges may have to follow a binding precedent even though they think it is bad law or inappropriate.

In the words of Prof Drewry, ‘An outdated precedent is a mummified corpse of long-dead social value.’ A rigid adherence to precedent does lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court.

While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Goff, ‘the law must be developed by judges and jurist in partnership’.

In view of the increasing judicial criticisms of the practice of stare decisis, in particular, it was said that the rule did not produce the desired certainty in the law, and that it sometimes produce absurd judgment, the Lord Chancellor issued a Practice Direction in 1966 where the House of Lords were allowed to depart from their own previous decisions when it appears right to do so. Although Lord Chancellor, Lord Gardiner, regards precedence as indispensable, nevertheless, he recognized that too rigid adherence to precedence may lead to injustice. Lord Gardiner emphasized that the change would enable the House of Lords to adapt English law to meet changing conditions.

Two years passed before the House of Lords first exercised the power to depart from its previous decision. That was in Conway v Rimmer (1968) on a question of the discovery of documents. In Miliangos v George Frank [1976], the HL overruled Re: Havana [1961] by allowing damages to be awarded in any foreign currencies if they are specified in the contract.

However, this flexible privilege is only accorded to the House of Lords and does not include the Court of Appeal and those courts below.

The Court of Appeal is still bound by the decisions of the House of Lords and their own previous decisions. The exceptions for departing from their own decisions is only permitted in accordance with the rules as laid down case of Young v Bristol Aeroplane (1944):

1. Where two previous Court of Appeal decisions are in conflict;
2. Where previous decisions of the Court of Appeal had been overruled by the House of Lords (HL), then the HL’s decision is binding; and
3. Where the previous decision has been given per incuriam.

In Miliangos v George Frank (1975), the Court of Appeal departed from the HL decision of Re: Havana (1960) by awarding damages in foreign currency. When the case went up to the House of Lords, the their Lordships held that the Court of Appeal had acted incorrectly, but nevertheless proceeded to depart from Havana.

The House of Lords were on number of occasions, unhappy over the manner of which the Court of Appeal seemed to defy the directives of the practice direction and the fundamental doctrine of stare decisis. Lord Chancellor, Lord Hailsham expressed his concerned on this matter when he rebuke the Court of Appeal’s decision in the case of Broome v Cassel [1971], that:

“It is not open to the Court of Appeal to give gratuitous advice to judges to ignore decisions of the House of Lords ... the fact is, and I hope it will never be necessary to say it again that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier.”

However, judges do have many ways to depart from precedent. They can do it by distinguishing the material facts of the previous and the present cases. A superior court may also reverse the decision of an inferior court, and a superior court can also overrule the decisions of an inferior court.

Another way is for judges to look into the provisions of the Community law and the European Conventions for Human Rights (ECHR). With the enactment of the European Community Act 1972 and also the Human Rights Act 1998, Community law now prevails over domestic laws, and the courts were directed to comply with the Community laws and Convention rights. Under s. 3(1) of the Human Rights Act 1998, judges have a duty to strive to find a possible interpretation compatible with Convention rights. Under ordinary method of interpretation, a court may depart from the language of the statute to avoid absurdity. Undoubtedly, a court must always look for a contextual and purposive interpretation. Where the statute is inconsistent with Convention rights, certain courts may make declaration of incompatibility (s. 4 HRA 1998). In the view of Lord Steyn (R v A (No.2) [2001], a declaration of incompatibility should only be a measure of last resort.

Various later cases also show a positive development in English domestic law through its judicial decisions.

In the case of Airedale NHS Trust v Bland (1993), the question raised was whether a life support machine should be switched off when a person was in a persistent vegetative state. Although it contravenes the Convention rights (right to live), the House of Lords allow the termination.

Similarly, in Re A (2000), pertaining to a Siamese twin, the House of Lords allowed the operation to proceed as recommended by the hospital despite objections from the parent. The House of Lords took into consideration the state of law on murder and the defence of necessity, and decided that a balance had to be struck on some very difficult issues.

In another example in the case of R v R (Marital rape), the House of Lords abolished husband’s 250 year-old immunity from criminal liability for raping his wife. Their lordship justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to act in order to remove from the common law a fiction which had become unacceptable. This decision was an example of the ability of the common law to evolve ‘in the light of changing social, economic and cultural development.

Being free of the shackles of binding precedent, the House of Lords is uniquely placed to develop English domestic law through its judicial decisions. In a way, it does prove that there are positive developments of allowing the common law to continually adapt and develop. As proffered by Lord Goff, ‘while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.

The judge must attach great weight to previous decisions, not only for practical and political reasons, in order to maintain sufficient certainty in legal doctrine and to avoid usurping the legislative function, but also for theoretical reasons. Those decisions provide, in general, the best available evidence of the collective wisdom of the common law.

Judges must subordinate their own individual reasoning and values to those enshrined in the law. On the other hand, the reasoning and values of the law are greater not only than those of the presently deciding judges, but also of any of the precedent-creating judges of the past.

Hence, the theory of common law does not dictate a slavish adherence to precedent. Even where prior judicial decisions are thought to state accurately the common law, a later judge is bound not by those decisions but by the principles implicit in them (Postema 1986). Further, while classical common law thought denies that judges are creative as lawmakers, they are not merely passive as lawfinders (Levy-Ullmann). Judges are in fact the privileged representative of the community, entrusted with its collective legal wisdom and authorised to draw on it constructively to find solutions to novel issues raised before the court.

Judicial Appointment Commission - ELS

Question 3b: 2004 - Zone A

The government is proposing to establish a Judicial Appointment Commission in England and Wales. Why was it thought necessary to reform the judicial selection process and should such a Commission have the power to appoint judges or merely to make recommendations?

The judiciary system is at the end of the day a service industry that must serve the purpose of the people." This statement was made by Mr. Austin Mitchell at the parliamentary debate on the Constitutional Reform Bill 2004.

It is fundamental that a judiciary system must be seen to be fair, just and an efficient administration of justice without partiality or prejudice and that it ensures every citizen have equal access to the law.

In the proposed Constitutional Reform Bill 2004, Clause 1 places the importance of judges to be independent and free from the influence of ministers especially cases involving a citizen and a government body. Ministers have a duty not to seek influence particularly judicial decision through any special cases to the judiciary.

Traditionally, the Lord Chancellor and the Prime Minister in Uk have the exclusive nominal control over the appointment of judges to the judiciary.

Professor Griffith has two views regarding the selection and appointment of judges. The first view is that the appointment of the judiciary is wholly in the hands of the politicians, which may lead to political cronyism in the selection process.

As an example, during the premiership of Lord Salsbury, there was the practice of making legal appointments and promotion as a reward for political 'right thinking'.

Secondly, Griffith is of the view that judges by their training and upbringing have acquired a strikingly homogeneous collection of attitudes, belies and principles which to them represents the public interest. However, judges may be impartial but then they are not neutral.

In the view of Griffith, the composition of judges do not reflect the social composition of the general population.

In the parliamentary debate on the Constitutional Reform Bill, Mr. Fraser, MP, voiced the concern that judges should be more representative of the communities that they serve. In his words, "judges are not masters of the community; they are its servants."

There was generally concern of the lack of women appointed to the judiciary, although they constitute the majority in the UK society. Similarly, there are also concerns of the lack of appointment of black people and other representatives of ethnic minorities.

Another concern is the number of appointments today which is now so much greater than when the system was traditionally under the control of the Lord Chancellor.

The overriding principle of the Constitutional Reform Bill pertaining to judicial appointments would be the independent and efficient administration of justice. There are also other targets and criteria which should be given to a judicial appointment commission who are capable to conduct them in a way that are free from political control.

The Commission for Judicial Appointment (CJA) which was first established in October 2000 was seen to be ineffective to solve the problems mentioned above. It was largely held that this body was merely a 'Half-way House' that does not have the power to select judges. They merely gave their opinion and the decision and appointment of judges was entirely left to the Lord Chancellor.

In response to these criticisms, the government has now set up the Judicial Appointment Commission (JAC) under the Constitutional Reform Act 2005. Under JAC, selection of judges shall be based solely on merits and that the selecting body must be satisfied that the appointee is of good character.

Literally, the power of appointing judges has now been taken away from the hands of the Lord Chancellor and placed on the Commission. However, the Lord Chancellor may issue guidance about procedures for the performance by the Commission relating to the functions of identifying persons willing to be considered for selection and assessing such persons for the purpose of selection. Before issuing any guidance, the Lord Chancellor must consult the Lord Chief Justice.

The next question arise is whether such a commission (JAC) should be empowered to appint judges or to merely make recommendations. As the main objective and the overriding principle of setting up such a Commission was to ensure that the system are independent and efficient in the administration of justice, at such, if the proposed set up of the JAC could ensure that they are capable to conduct their administration in a way that was free from political control, and that those selected as judges are based on their merits and are person of good character, then it would have fulfilled the objective. The question of who to recommend or select judges thus do not arise.

To ensure that the system is efficient and fair, the judicial system must be made accountable to the representative of the people. If the syystem are accountable to the House of Commons, we will see a better and more adequate system.

So long as appointment of judges are subjected to independent scrutiny and the selection body are seen to be independent of politics, and are transparent, the judicial system would be directed to the fair and efficient administration of justice without partiality or prejudice.

Statutory Intepretation - ELS

Question 1:

Consider critically the rule of interpretation which guides judges in their interpretation of statutes and the presumptions they apply in the process.


The roles of judiciary are merely to apply the law that had been enacted by parliament. This view is too simplistic to the extent that it denies or at least ignores the extent of which the judiciary has a measure of discretion and creative power in the manner in which he interprets the legislation that comes before him.

Legislation can be seen as a form of communication. It represents and passes on to the judiciary and society at large what parliament has determined should be the law governing a particular statute.

What is then the problem?

Uncertainty is inherent in any mode of communication. Conflicting aims of legislation gives rise to a particular problem of interpretation. These conflicting aims are the need to be clear whilst at the same time is general.

Clarity and precision tend to be achieved only in inverse proportion to generality, but legislation must endeavor to be general practicability.

There therefore in all legislation a number of uncertainty that can only be illuminated and made certain by judicial interpretation. Interpretation is therefore a creative process and inevitably renders the judiciary in the process of creating law.

How do judges actually interpret statutes?

In determining the actual meaning of legislation, they make use of the 3 rules of interpretation and a variety of secondary aides. The 3 rules are: Literal Rule, Golden Rule & Mischief Rule.

It must be emphasized that they are actually not rules but rather, general approaches. It cannot be treated as rules because judges have the discretion to choose which approach to use depending on how they want to interpret a particular statute that comes before them.

1. Literal Rule

Judges are required to consider what the legislation actually says rather than considering what it might mean. Judges have to give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome.

Fisher v Bell

Court stood by their literal interpretation of the Act in question and refuses to extent the usual legal interpretation of the word ‘offer’.

2. Golden Rule

This rule may be used when application of Literal Rule will result in what appears to the court to be ‘absurd’.

Alder v George – Golden Rule

D was charged under OSA 1920 with obstruction in the vicinity of a prohibited area whereas the obstruction was actually inside the vicinity. The court was prepared not to restrict itself to the literal wording of the Act & found her guilty as charged.

3. Mischief Rule

Rules was established in Heydon’s case (1584)

It gives the court the justification for going beyond the actual wording of a statute in order to consider the problem that the particular statute was aim at remedying. The limitation of this rule is that, it must use previous Common Law to determine the mischief of the Statute in question was designed to remedy.

Corkery v Carpenter (1951) – Mischief Rule

D was charged for being drunk while in charge of a bicycle on the highway. Court held that bicycle was a ‘carriage’ for the purpose of s.12 of the Licensing Act 1872. The purpose of the Act was to prevent people who are in a state of intoxicated to use any form of transport on public roads.

It was suggested that the 3 rules ranked in a hierarchical order. But in essence, they are not. Literal Rule will be used unless it leads to absurdity which may lead to the use of the Golden Rule. But what determines whether any particular result is an absurdity other than the views of judges deciding the cases? These rules are contradictory at least to a certain extent, in a way no outsiders can determine which rule will be applied by the judges in a particular case. As such, they are merely devices which judges use to justify their decision.

Judges in interpreting statutes are also required by the HRA 1998 to construe statutes as far as possible to give effect to the rights as provided by the ECHR.
Since Parliament is sovereign, it can of course alter the common law by express enactment, but otherwise, a statute is presumed not to make any fundamental change to common law.

A statute does not impose criminal liability without proof of mens rea (Sweet v Parsley [1970]). Here the owner of the management premise which was used for smoking cannabis was acquitted as the House of Lords held that she would not know her property was being used for that illegal purpose and as such, she cannot be guilty for such offence.

But presumptions can be rebutted by express rewording of statute (example: Strict liability cases) or by implication (judges interpretation).

Statute is presumed not to operate retrospectively. But it is open to Parliament to enact such legislation as was done in War Damage Act 1965 – in order to prevent Burmese Oil Company from collecting damages which the court had decided were owed to it from the state.

Question 2:

Consider the implications of Pepper v Hart [1993] within the context of materials available to courts in the construction of legislation.


Answer:


The courts in interpreting the statutes apply 3 rules (Literal, Golden & Mischief Rules) and a variety of presumptions and secondary aids (intrinsic and extrinsic) to construct the meaning of the statutes.

Internal aids to construction of statute

Assistance is said to be intrinsic when it is derived from the statute which is immediately under consideration Example:

1. Title of the Act – it’s long title & short title

But these titles tend not to be used by courts in determining the purpose of legislation and any general intention derived from the title as it must give way when words are clear in the actual body of the Act. There are circumstances where courts will refer to the long title of the Act in making their decision as to what its effect and operation (Royal College of Nursing v DHSS)

2. Preambles

Preambles are Statement preceding the actual provisions of the Act which sets out its purpose, sometimes in full detail.

3. Schedules

Schedules to the Act appear as addition at the end of the main body of legislation. They form part of the Act and may be used to shed light on any obscurity in the main text.

4. Punctuations

Punctuations have an effect on the meaning of words and can be taken into consideration in determining the meaning of legislation.


External aids to construction of statute

This is the area where uncertainty exists. The case of Pepper v Hart (allowed to consult the Hansard) had the main impact for it had been seen as overturning the previous fundamentally restrictive approach of the court to what they can legitimately look at in order to determine the meaning and purpose of statute.

Other extrinsic aids are:

(i) Dictionaries – to determine non-legal words
(ii) Authoritative textbooks – on points of law

Historically, English courts have adopted a distinctive approach to what they are entitled to take into consideration although some judges such as Lord Denning have been ‘notorious’ for trying to avoid those restrictive rules.

The restrictive approach has been gradually relegated to the extent that judges can now use extrinsic sources to at least determine the mischief at which a particular legislation was aimed and in pursuit of this end, they are entitled to look at the Law Commission Reports and Royal Commission Reports.

But there have been a debate as to the access to the debates of Parliament as reported in the Hansard.

In Pepper v Hart, the House of Lords decides to overturn the prevailing rule that judges were not at liberty to consult the reports of Parliamentary debates recorded in the Hansard in order to assist them in their construction of legislation. In a majority decision, it was held that where precise meaning of legislation was uncertain or unambiguous or whose literal rule meaning of an Act would lead to a manifest absurdity, the court could refer to Hansard as to aid them in constructing the meaning of legislation. In the words of Lord Browne Wilkinson:

“There is good reason for making a modification to the existing rule – because such report might produce a clear indication of what Parliament had actually intended in using particular words.”

In permitting this extension, the House of Lords did not grant absolute freedom to future courts. Reference to Hansard should be made only to reveal the legislative intention of the statute rather than to find the precise meaning of statutory language.

Extension applies to the determination of the mischief at which the particular legislation is aimed rather than the determination of the precise explanation of the remedy provided. Only statements made by host minister or other sponsor responsible for the provision and passage of the legislation will be considered as authoritative in determining the mischief at which a particular statute was aimed.

Until 1980, there has been a Parliamentary rule that prevents counsel in any court case from citing debates in the House of Commons without prior permission of the House.

In Pepper v Hart, it was considered that whether the use of Hansard in court would challenge the freedom of Parliamentary debates and constitute a breach of the Bill of Rights, the House of Lords pointed out that relaxation of the old rule would lead to the court giving effect to the wishes of Parliament and thus could not in any way be seen as an infringement of Parliamentary privilege.

Operation of Pepper v Hart was extended in Three Rivers DC v Bank of England (No.2) [1996] to cover situations where legislation under question was not itself ambiguous, but might be ineffective in its intention to give effect to some particular European Court Directions.

In Melluish v BMI (No.3) [1995], the court refused to extend the rule to situation where ministers had made statements as to the meaning of statutes at some time other than at the passing of that particular piece of legislation.

Question 3:

“The traditional approach to statutory interpretation has lost its hold in recent years. Judges are now free in their approach to interpretation than previously.”
Comment.


The roles of judiciary are merely to apply the law that had been enacted by parliament. This view is too simplistic to the extent that it denies or at least ignores the extent of which the judiciary has a measure of discretion and creative power in the manner in which he interprets the legislation that comes before him.

In order for an Act of Parliament to have its proper effect, it must be understood and clear. Legislation therefore involves an inescapable measure of uncertainties that can only be made certain through judicial interpretation.

What is then the problem?

Uncertainty is inherent in any mode of communication. Conflicting aims of legislation gives rise to a particular problem of interpretation. These conflicting aims are the need to be clear whilst at the same time is general.

Clarity and precision tend to be achieved only in inverse proportion to generality, but legislation must endeavor to be general practicability.

There therefore in all legislation a number of uncertainties that can only be illuminated and made certain by judicial interpretation. Interpretation is therefore a creative process and inevitably renders the judiciary in the process of creating law.

How do judges actually interpret statutes?

In determining the actual meaning of legislation, they make use of the 3 rules of interpretation and a variety of secondary aides. The 3 rules are: Literal Rule, Golden Rule & Mischief Rule.

It must be emphasized that they are actually not rules but rather, general approaches. It cannot be treated as rules because judges have the discretion to choose which approach to use depending on how they want to interpret a particular statute that comes before them.

The traditional approach to statutory interpretation had always been what Denning called the “strict traditionist” view. What it means is that judges are required to consider what the legislation actually says rather than considering what it might mean. Judges have to give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome. For example, in Fisher v Bell, the Court stood by their literal interpretation of the Act in question and refuses to extent the usual legal interpretation of the word ‘offer’.

The Golden Rule may be used when application of Literal Rule will result in what appears to the court to be ‘absurd’. It basically ‘fills in the gap’ and provides judicial repair of the statute. In Adler v George, D was charged under OSA 1920 with obstruction in the vicinity of a prohibited area whereas the obstruction was actually inside the vicinity. The court held the words “in the vicinity” should read “in or in the vicinity of” as otherwise the implication would create absurdity or and extraordinary result.

The Mischief Rule was established in Heydon’s case (1584). It gives the court the justification for going beyond the actual wording of a statute in order to consider the problem that the particular statute was aim at remedying. The limitation of this rule is that, it must use previous Common Law before the Act was passed to determine the mischief of the Statute in question was designed to remedy. In Corkery v Carpenter (1951), D was charged for being drunk while in charge of a bicycle on the highway. Court held that bicycle was a ‘carriage’ for the purpose of s.12 of the Licensing Act 1872. The purpose of the Act was to prevent people who are in a state of intoxicated to use any form of transport on public roads.

It was suggested that the 3 rules ranked in a hierarchical order. But in essence, they are not. Literal Rule will be used unless it leads to absurdity which may lead to the use of the Golden Rule. But what determines whether any particular result is an absurdity other than the views of judges deciding the cases? These rules are contradictory at least to a certain extent, in a way no outsiders can determine which rule will be applied by the judges in a particular case. As such, they are merely devices which judges use to justify their decision.

Modern approaches to interpretation also include Purposive Approach and Contextual Approaches. In purposive approach, the court finds the purpose of the Act and interprets the words to fulfill that purpose. This can be seen in the case of Pepper and Hart where the court can refer to parliamentarian debates (the Hansard) in order to aid them in interpretation of a statute. In the contextual approach, the words are interpreted in accordance with the context within which they are found in the Act.

Judges in interpreting statutes are also required under s. 3(1) of the HRA 1998 to construe statutes as far as possible to give effect to the rights as provided by the ECHR. In R v A (No.2), the court held taking into account of the interest of the defence, the victim and the society, and applying the Court’s interpretative obligation under s. 3 HRA 1998, the evidence and questioning of the alleged prior consensual sexual relations between the accused and the complainant is admissible under s. 41(3)(c) of the Youth Justice & Criminal Evidence Act 1999 (YJAEA 1999).

In Ghaidan v Mendoza (2004) HL, Lord Steyn states that, “In enacting the HRA 1998, Parliament legislated to ‘bring rights home’ from the ECHR to be determined in the Courts of UK. Therefore, rights could only be effectively ‘brought home’ if s. 3(1) HRA 1998 was the prime remedial measure and s. 4 a measure of last resort.

The question of whether the traditional approach to statutory interpretation has lost its hold in the recent years, it does seem that it did not. In Goodes v East Sussex City Council (2000), the HL held the statutory duty of highway authorities under s. 4(1) Highway Act 1980, to maintain the highway, did not include the removal of ice and snow though such removal might be expected by modern road-users; maintenance was thus interpreted as confined to keeping the fabric of the road in good repair. This interpretation is thus in conformance with the traditional literal rule. In Brimingham City Council v Oakley (2001), the HL held the concept of the words “premises in such a state as to be prejudicial to health” under s. 79(1)(a) Environmental Protection Act 1990, do not include the facilities such as the provision of washbasins in the lavatory. According to Lord Hoffman, “one should not use a word to express a broader concept than that intended by Parliament, such a step would tantamount to an illegitimate extension of the ordinary statutory meaning.” Again, in Gorringe v Calderdale (2004) HL, Lord Hoffman took a similar approach and held that the highway authority’s duty to maintain the highway (under s. 4(1)) did not include providing ‘road-signs’.

However, we can’t avoid the facts that judges are now freer in their approach to interpret the statute. The case of R v A (No.2) is clear support of this point where Lord Steyn had adopted the ‘implied provision test’ or the ‘expansion test’ which is a wider reading of s. 41 of JYAEA 1999. in that case, Lord Steyn enunciated that a declaration of incompatibility under s. 4 HRA 1998 is a measure of last resort. Therefore, R v A illustrated the judicial shift of parliamentary power to the judiciary.

In conclusion, the court now invokes whichever of the rules which produce a result that satisfies its sense of justice as proffered by Prof John Willis. As can be observed in Lord Reid’s judgment in Maunsell v Olins (1975), the rules of interpretation are not ‘rules in the ordinary sense of having some binding force. They are our servants not our masters … we must look at the particular circumstances and decide as a matter of judgment what weight to attach to any particular rule. In a wider sense, there are plenty of room for judiciary creativity and a freer approach to statutory interpretation than was previously.

Conventions - Public Law

UK’s constitution is partly-written (Phillip Norton) and descriptive (LJ Stephen Sedley). Constitutions is typically thought of as a body of rules regulating the way in which an institution or organization operates. In the case of a state, the constitution will determine the institutions of government, the allocation of power between those institutions, and the procedure for resolving conflicts between institutions of government. A modern constitution is expected to detail the fundamental rights and duties of its citizens. The sources of the constitution are derived from Acts of Parliament, decisions of judges (Common Law), and constitutional conventions.

According to Marshall & Moodie, conventions are rules of constitutional behavior which are considered binding by and upon those who operate the constitution but which are not enforced by the law court.

In the view of Sir Ivor Jennings, Conventions are the ‘flesh which clothes the dry bones’ of the law.

It is submitted that if conventions are codified, it would make them certain and easily identified. It would also reduce the areas of potential conflict. Examples of vague conventions are – the position of the monarch and future monarch, and the uncertainties surrounding the doctrine of ministerial responsibilities. Furthermore, in UK, the term “unconstitutional” has no definition, whereas, in USA, ‘unconstitutional’ means illegal.

With codification, it would be possible that former non-legal constitutional practices could now be legally enforced by judges. Thus conventions would not be weak anymore – ending the long debate between Austin and Mitchell.

Another merit to codification is that it would deter the government taking advantage of the flexibility of convention to suit its own political aim.

Nevertheless, there are also demerits of codification.

A legal code is politically inconvenient as it may be difficult to keep in touch with the contemporary political needs and change. The flexibility of conventions can be illustrated by the practice of ‘Agreement to Disagree’.

Under the current position, constitutional development could occur without the necessity of adhering to formal legal mechanism. Thus, codification would ‘purchase certainty at the expense of flexibility’ (De Smith).

Even in countries with codified constitution, conventional practices exist side-by-side with the codified constitution.

There would also be problem of identifying which conventions are to be codified, as there are just too many of them in practice. Thus, view had been expressed that what is more important is actually the spirit rather than the letter.

Should conventions be crystallized into law, judges would then need to interpret them and they would be shouldering matters of extreme political sensitivity. Conventions had always provided the means of bringing about constitutional change without a formal change of the law. They allow the constitution to evolve and keep up to date with changing circumstances without the need for formal enactment and enforcement.

It is suggested that a more practical solution would be the ad hoc approach, rather than a complete codification. The essence of UK’s constitution lies not in its laws, but its conventions – rules that have evolved gradually transforming the system of government without subscribing to formality. Ultimately, all constitutions are political in that they can only have practical effect if they are seen by the majority of citizens to be legitimate.

As a concluding statement, Lord Hailsham’s comment deserved consideration:

“It is the acceptance of convention, which seems to make the British a nation of cricketers, and the Americans a nation of litigants.”

Royal Prerogative - Public Law

Royal prerogative is the constitutional inheritence from the centuries prior to the existence of parliament. It is a collection of powers which are wide ranging and in terms of strict law, it belongs to the Crown alone. Today the majority of these powers are exercised by the government of the day or by the judiciary in the name of the Crown.

Blackstone defines prerogative as "that special pre-eminence which the King hath over and above all other people..."

AV Dicey refers it to the "residue of discretionary power or arbitrary authority left in the hands of the Crown .."

Therefore, it can be seen that prerogatives are basically common law powers which are recognised by the court. These prerogative powers legitimise executive actions without the need for an Act of Parliament.

Blackstone separates the prerogative into areas realting to foreign affairs and domestic affairs. Foreign affair prerogatives can be subsumed as:

1. The power to declare war or peace;
2. Power to enter treaties;
3. Recognition of foreign States;
4. Diplomatic relations; &
5. Disposition of armed forces overseas.

Within the domestic category falls:

1. Summoning and the dissolution of Parliament;
2. Appointment of ministers;
3. Royal assent to Bills;
4. Granting of honours;
5. Defence of the realm;
6. Protective jurisdiction (over children);
7. Power to stop criminal prosecution;
8. Granting of mercy and pardon;
9. Regulation of the terms and conditions of civil service; and
10. Rights to royal fish and swans.

The dissolution of Parliament lies within the prerogative of the Crown. The Crown has the right to disolve Parliament on its own initiative, and also the right to refuse a dissolution as requested by the Prime Minister.

The dismissal of His government by King William IV in 1835 reveals the constitutional danger of the exercise of monarchical power. The King misjudged the strength of public opinions against the government. Bahegot evaluates this situation and described it as the last precedent for royal onslaught on a ministry - they will leave a ministry trusted by Parliament to the judgement of Parliament. It is suggested that 'a Royal dissolution in our times will be unconstitutional' (Marshall, 1984). With parliamentary process of government functioning correctly, there should never be a situation arising in which an exercise of prerogative power by the Crown would become necessary.

In Divey view, a dissolution is allowable, or necessary, whenever the wishes of the legisture are, or may fairly be presumed to be, different from the wishes of the nation.

The UK constitution is founded on the idea of the Rule of Law which concerns the allocation of power and the control of its exercise.

The control of civil service is vested in the Crown. In reality, civil servants have no contractual relationship with the Crown as their salaries and benefits are prescribed by statute, but for the most part, the civil service is governed under the prerogatives.

Consistent with the doctrine of Parliamentary Sovereignty, Parliament has the right and power to abolish or preserve prerogative powerts. Parliament can through its scrutiny procedures call on the government to account for its exercise of the prerogative.

Parliament may declare certain former prerogative powers to be unlawful and place them firmly within parliament's power (example: The Bill of Rights 1689). However, unless the prerogative is expressly abolished, it will remain as a source of power but one which cannot be exercised while a statute regulating the same subject is in force.

In terms of judicial control, the courts have always taken the view that they are the arbiters of whether or not a prerogative power exists. The case of BBC v Johns (1965) makes it clear that no new prerogative can be extablished.

In the case of Laker Airways v Dept of Trade (1977), it was held by the court that a prerogative - in this case the treaty-making power - could not be used to defeat a right granted under an Act of Parliament.

Similarly, in R v Secretary of State for Home Dept ex parte Fire Brigade Union (1995), the House of Lords ruled that the Home Secretary had no power under the prerogative to amend the Criminal Injuries Compensation Scheme (which was set up under the prerogative), where an Act of Parliament provided for its amendment (eventhough the relevant provisions had not been brought into force).

As regard to Justiciability, the courts regard themselves as competent to review the existence of the prerogative. In the leading case of GCHQ, the House of Lords were unanimous in holding that prerogative powers are capable of judicial review in its exercise. The principles established in the GCHQ case is that (1) the courts had the jurisdiction to review prerogative acts in the same manner as under an Act of Parliament; and (2) the court would only review prerogative acts which do not involve matters of high policy best determined by the executives.

In conclusion, royal prerogative has been seen to be an elusive constitutional animal which is capable of appearing in any form and under any unforeseen circumstances. The case of Northrumbria Police Authority illustrate the fundamental difficulty of identifying and defining prerogative power.

It can be agreed that there is little to suggest that replacing such power by statute, even if they could be identified, would lead to fewer abuses of power. For this reason, the prerogative is unlikely to retain its uncertain form, thus leaving to government a residue of largely uncontrolled power.

Separation of Power - Public Law

The separation of power is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the State are not concentrated in any one body.

Under the generally uncodified, largely unwritten UK constitution, there is no strict separation of powers that exists. It is basically a system for check and balances which ensures that powers are not abused.

The identification of the three lements of the constitution derives from Aristotle in his book 'The Politics'. The doctrine of Separation of Power can be traced back to the reign of King Edward I (1272-1307).

Montesqueiu systematically reformulated the doctrine of Separation of Power in his book, 'The Spirit of Law'. He distinguished it into three separate organs, i.e. legislature, executive, and the judiciary. He maintains that members of one organ should not be member of the other; neither should one organ exercise the function of the other.

UK basically adopted the system of 'Parliamentary Executive', blending legislature with the executives. For example, the Home Secretary who is a senior member of the cabinet (executive function) is also a member of the Hous eof Common (legislative function). He also exercise an adjudicative function (judicial) within the criminal process, such as, the granting of mercy and pardon in the name of the Crown.

Another example is the House of Lords, being the second chamber and the Upper House of the legislature, which is also the highest court of last resort in UK. Law Lords and Life Peers also takes part in parliamentary debates.

The prime Minister and his Ministers who are all members of Parliament sit in the House of Commons. These show that the executives are present at the heart of Parliament. By contrast, in USA, the President is not a member of the legislature (Congress) and is elected separately from Congressmen. This may result in the President being of a different political party from the majority of Congressmen. That cannot happen in UK as the Prime Minister will always be the leader of the political party that won a majority of seats in a general election.

Parliament may delegate law-making powers to the government through powers to draft subordinate or delegated legislation. Such legislation is subjected to the ultimate approval of Parliament. Delegated legislation, however, does raise questions about the Separation of Powers between the executive and legislature.

AS the UK constitution is largely unwritten and has eveolved over time, it can be seen that there is no strict separation of powers and the system lies in its constitutional conventions.

For example, the convention of ministerial responsibility ensures the accountability of government to Parliament. The doctrine of ministerial responsibility consists of conventions of collective responsibility and individual responsibility. Collective responsibility means members of the cabinet and non-cabinet ministers as a whole are answerable and accountable to Parliament. Ministers must collectively support the final decisions made by the cabinet, even if they are disagreeable. They must show unity by vote or speech and outside Parliament. If any minister would not support the policy adopted by the cabinet, by convention, he is expected to resign. An example is Michael Haseltine, the then Secretary of State for Defence who resign from office when he could not accept the Prime Minister’s directive to his ministers, that all issues pertaining to Westland Helicopters and any ministerial statements would first have to be cleared by the cabinet.

Individual responsibility means that ministers must be individually responsible and accountable for their own conduct as well as the conduct of their department. Ministers shall take the praise for success and also blames for its failures within their department. For departmental failure, a minister may face a vote of censure and may be required to resign.

In 1963, the Minister of Defence, Mr. John Profumo was found to have been having a sexual relationship with a prostitute, Christine Keeler. Ms Keeler was at the same time found to enjoy a close personal relationship with a Russian Attache’. When questioned, Profumo lied to the House. When the truth emerged, he resigned from office.

In the Crichel Down affair (1954), a public enquiry found that there had been inaccuracies in the report on the land. The report was not check by the relevant minister. The then Minister of Agriculture, Thomas Dugdale accepted responsibility and resigned.

However, there are also cases whereby the ministers may excused themselves from the responsibilities of failure due to departmental mismanagement. This can be seen in the matter of the Service Director of prison who was dismissed after it was revealed that arms and escape equipments were discovered in prison. The Home Secretary at that time, Michael Howard did not resign.

Scrutinising the efficiency and effectiveness with which government have used their resources is handled by the Public Accounts Committee (PAC). The PAC has the task to examine the reports of the Parliamentary Commissioner for Administration (PCA) and the Health Service Commissioner (HSC). Additionally the PAC also considers matters relating to the Civil Services.

Monitoring the privilege of Parliament and the conduct of Ministers is carried out by the Committee on Standards and privileges (CSP). Examining delegated leglislation is the task of the Select Committee on Statutory instruments.

Departmental Select Committees (DSC) established in 1979 provides for scrutinising ministers and bureaucracies to ensure effective control and stewardship.

It can be seen that the House of Commons performs a number of useful functions with varying results. However, it is clear that it could achieve far greater results through the use of more varied procedures, particularly in Committees and far greater use of pre-legislative scrutiny by the expert Select-Committee and Ombudmen, which has already shown some impact.

Recent development in Common Law had raise the issue of judicial encroachment in legislative functions. The incorporation of the ECHR into domestic law via HRA 1998 do raise the question about the preservation of the doctrine of parliamentary supremacy and separation of power. The caveat is to query to what extent membership in EU and ECHR had allowed the courts to adjudicate the legality and validity of the Acts of Parliament.

For example, in the case of R v A (2001), the House of Lords was seen to have utilised s.3 HRA 1998 as a radical tool that portrays a judiciary shift of power from legislative to judicial power. In this case, Lord Steyn did not declare the statute as incompatible but went on to declare s.41 of the Youth Justice Criminal Evidence Act 1999 as 'too widely' drafted in which the Law Lords contrued that the Act had made excessive inroad into the rights for a fair trial which is contrary to s.6 ECHR. In Lord Steyn words: "to bring rights home effectively, s.3 must be the prime remedial measure and s.4 HRA the measure of last resort," which in the words of Lord Simmonds would have been seen as "a naked usurpation of the legislative functions".

However, it must be noted that the HRA 1998 and the ECA 1972 are regarded as partially entrenched and are still subjected to the will of Parliament. It must be remembered that Parliament is still the supreme law-making body, elected by the people, and have the power to overturn judicial decisions. Therefore, there still exist a possibility of express repeal.

In conclusion, it is recognised that certain degree of power and functions between the three organs do overlap, which suggest that although each organ functions within it's own sphere, none is supreme. The sphere of power conceded to Parliament to enact law to regulate it's own procedure is clear example of the existence of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.

Separation of Power (note) - Public Law

Separation of Power – Examination tips

Introduction

Many examination answers fall down because candidates simply recite the doctrine of separation of powers and proceed to give examples of how the British constitution observes the separation of powers or disregards it. Hence the role of the Lord Chancellor as a member of all three branches of government is cited as evidence that the British constitution pays only lip service to the doctrine. Similarly candidates cite the fact that ministers are members of the legislature that the Law Lords sit as members of the legislature in the House of Lords and that tribunals being part of the executive determine disputes as to the law.

Such an analysis is hopelessly unsophisticated as it fails to address the key underlying issues. First, it has to be stressed that breaches of the doctrine may not be important if there are effective checks and balances in place. Hence, a key aspect of the doctrine of the separation of powers is the application of judicial reviews, whereby the courts can rule on the legality of executive action. A more reflective analysis will be to reveal that some breaches of the separation of powers have a positive virtue. Ministers who are members of the legislature are more easily accountable to MPs; Law Lords sitting in the legislature can contribute to law reform measures; tribunals may be more effective, quicker and cheaper than courts of law in determining disputes in specialist area.

Similarly, in Royal prerogatives, Judicial reviews serves as the check and balances to ensure that executives (ministers do not abuse their powers.

(Read chapter 6.9 on Judicial Review in ELS Gary Slapper (page 236-257; 6th. Edition) and use the illustrations and cases cited there to illustrate the way courts had kept the check and balance to mitigate on executive abuses.