“Judges are not elected. Therefore they should not make law.”Lord Acton said, “Power tends to corrupt. And absolute power corrupts absolutely.” According to the Doctrine of the Separation of Powers, Judges must not challenge the political authority of the Legislature to decide what new laws should be made. The Separation of Powers is a fundamental principle in which each distinct branch, Legislative, Executive and Judicial, can check and balance the other to prevent the concentration of power and guard against tyranny. Montesquieu (1748) said, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers.”
In the United Kingdom, the Executive comprises of the Sovereign and the Government, including the Prime Minister and Cabinet Ministers. The role of the Executive branch is to formulate and implement the Policies. Government proposes a Policy which is passed to the Legislative Branch in the form of a Bill. The Crown or Sovereignty accepts and implements the Bill after it has been passed through the Legislative Branch by convention. The Legislature, Parliament, comprises of the Crown, the House of Commons and the House of Lords. The Legislative Branch creates the law. A Bill is a proposal for a new law or a proposal to amend an existing law, it is presented for debate in the House of Commons and the House of Lords. The Bill can start at either Houses but must pass through both with a majority acceptance vote. The Legislature can be said to have the most responsibility when it comes to making laws in England and Wales. When a Bill starts it goes through various stages before becoming an Act (Law). The first step is the First Reading, at this stage the Bill considered is read for the first time and is printed. It moves on to the Second Reading where Members of the House debate the Bill’s principle. The Bill is passed on to the Committee stage where Committee members study the Bill, clause by clause. At the Report Stage members of the House can make other amendments. It then passes on to the Third Reading where members debate and vote on the Bill, once there has been a majority vote, the Bill goes to the other House where it follows a similar process. Once the Bill has been accepted by both Houses with a majority vote it goes to the Executive where the Prime Minister accepts the Bill. The last stage is the Royal Assent, which is given by the Sovereign (Queen Elisabeth II) due to convention. The Judiciary comprises of the Judges in the Courts of law (High Court, Court of Appeal, and House of Lord now known as the Supreme Court since 1st October, 2009), those who hold Judicial Office in tribunals and the Lay Magistrates who staff the Magistrates’ Courts. Judges are selected by the Judicial Appointments Commission (JAC) since 3rd April, 2006 and Judicial appointments are made by the Crown, “Transfer of appointment functions to her Majesty”, listed in Schedule 14 to the Constitutional Reform Act 2005. The Judiciary’s role is to interpret and declare the laws created by the Legislature. Lord Diplock stated in the case Duport Steels V Sirs (1980), “It cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the Separation of Powers; Parliament makes the laws, the Judiciary interpret them.” Lord Esher stated in the case of Willis V Baddeley (1892) 2 QB 324, “There is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable’’ The Judicial process was described as, ‘The determination of the law relative to the case, followed by the retrospective application of the law, and thus, the courts changing the law.’ The United Kingdom has an unwritten constitution, and as such, they have built their ‘constitution’ on mainly Common Law, Acts of Parliament and the European legislation. Common Law approves the argument that courts do in fact have a role in Law making; It is the part of the English law that is consequent from custom and Judicial Precedent rather than statutes. ‘Stare decisis’ is a key feature of the Common Law system; Stare decisis is the practice of following previous decisions of the Court of higher authority. Precedents are dependent on the court hierarchy as superior courts have the power to overrule decisions made by inferior courts. Thus every rule of law is subject to amendment, either by Judges or Parliament because as time progresses, Common Law evolves with it, along with many Legal Principles. Despite the Doctrine of Separation of Powers stating otherwise, Judges do ‘create’ new law. The 1966 Practise Statement 3 All ER 77 made by Lord Gardener, L.C., on behalf of himself and the Lords of Appeal in Ordinary permits the House of Lords to depart from their previous decisions (The Doctrine of Precedents/ Stare Decisis). Ronald Dworkin in the ‘Hart-Dowrkin Debate’ stated that judges have no discretion in law making, they are merely implementing it. He also stated that law was a seamless web of principles and judges have to follow these principles. However, since Lord Chancellor issued the practise statement, it helped create flexibility in cases. This gave the House of Lords power to alter the position of the existing law. S2(1) European Community Act 1972, S3 Human Rights Act (1998) Allowed Judges to make law rather than simply interpret as they were seen to be filling the ‘gaps’ of the ambiguous legislation. The Legislation made way for many cases where new law was made; Pepper v Hart (1993) overruled the House of Lords ruling in the Davis v Johnson (1979) that banned the use of Hansard in statutory interpretation, British Railways Board v Herrington (1972) overruling Addie v Dumbreck (1929) on the duty of care owed to a child trespasser, and R v Dica (2004) the Court of Appeal overruled R v Clarence (1888) and held that criminal liability could be imposed on a defendant for infecting another person with HIV. The judiciary has formulated various methods which they use to interpret vague statutory provisions. The Literal rule of interpretation states that the wording of the statute must be followed in a word by word basis; this gives judges no freedom of choice for them to actually change the law but only to enforce it. The statute must be enforced by the judges even though it may lead to an illogical decision. The case of Fisher v Bell is a demonstration of this rule. The strict application of the Literal rule may be altered by use of the Golden rule; judges may depart from the usual meaning of the words, in favour of an interpretation which avoids illogicality. The Mischief rule asks the judge to consider what the legislative purpose of the Act was - what was the ‘mischief’ the Act was trying to deal with. Any question of interpretation should be determined in such a way as not to hinder that purpose. The role of judges in law making is evident, and they do have a major part to play in the evolution and development of out of date law. However, Government should not be based in a single power as it can lead to dictatorship, oligarchy and disorder. Liberty exists not only for individual freedom and rights but also with boundaries in relation to law so that there would not be abuse of powers. The Doctrine of Separation of Powers states that a government should be set up so that man should not be required to do things which the law does not require him, nor should he be obliged to refrain from things allowable. This convention is important for the maintenance of checks and balances. Judges therefore, according to the Doctrine of Separation of Powers should not make law, as their role is to interpret and declare law created by Legislation.
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