11.
Judge-made law
Constitutional and Administrative Law (12th edn)
Neil Parpworth
p. 246 11. Judge-made law
Neil Parpworth, Associate Professor in Law, De Montfort University
https://doi.org/10.1093/he/9780192856579.003.0011
Published in print: 28 April 2022
Published online: September 2022
Abstract
This chapter considers a further source of the UK constitution: the law that is made by the judicial branch of government as a
result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms:
the development of the common law and the interpretation of statutes. The two main approaches of the courts to the
interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. In addition, the
interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.
Keywords: judge-made law, common law, interpreting Acts of Parliament, rules of interpretation, Human Rights Act 1998
Summary
In this chapter we turn our attention to a further source of the UK constitution: the law made by the
judicial branch of the government as a result of the cases heard by the courts.
Introduction
11.1 It will be remembered that for A V Dicey in Introduction to the Study of the Law of Constitution (1885),
the constitution was the product of judge-made law. However, for some considerable time, judges were
anxious to play down their law-making function. Thus in Willis & Co v Baddeley (1892), Lord Esher
remarked:
There is, in fact, 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 been authoritatively laid
down that such law is applicable.
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11. Judge-made law
11.2 Eventually, however, as Lord Mance has noted, the ‘declaratory’ view of the common law—that it
was not made by the judiciary but merely declared from time to time—gave way to reality. Thus, as Lord
Reid explained:
There was a time when it was thought almost indecent to suggest that judges make law—they only
declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is
hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him
knowledge of the magic words Open Sesame. Bad decisions are given when the judge muddles the
password and the wrong door opens. But we do not believe in fairy tales any more.
Thus, it is now widely accepted that judge-made law is a reality. It may take one of two main forms: the
development of the common law or the interpretation of statutes.
11.3 Echoes of Lord Reid’s remarks are to be found in those of Michael Kirby, the former Justice of the
p. 247 High Court of Australia, when he wrote:
Being a judge in our legal system necessarily involves the officer-holder in a creative function … It is well
that … those who live in the dream world where judges make no law can be given a rude awakening …
Nostalgic dreams of judges without choices, devoid of creativity, abjuring ‘activism’, may be found in
fairy stories. But for judges, lawyers and citizens who are obliged to live in the real world, it is necessary
to face up to the requirements of judicial choice … Choice about the interpretation of ambiguous
legislation. Choice about the application, extension, confinement or elaboration of old principles of the
common law to new facts, circumstances and times.
The common law
11.4 This body of law comprises the rules and principles that have been declared to be the law by the
courts. Thus, as Lord Sales (2018) has remarked, ‘the courts are the custodians of the common law and are
trusted by society to develop it’. Rather like statute law, the common law straddles the divide between
private law, for example contract and tort, and public law.
11.5 In the present context, we have already seen several examples of what may be properly described as
judicial law-making. Thus in Entick v Carrington (1765), the courts established the principle that
interference with an individual’s property required prior authorization by the law (see paras 3.24 and
3.27). That which was done without lawful authority was therefore unlawful. In Burmah Oil v Lord Advocate
(1965), the House of Lords (HL) held that the oil company had a common law right to be compensated for
the destruction of its installations by British forces which were acting under the prerogative. Admittedly,
that right was subsequently extinguished by the terms of the War Damage Act 1965 (see paras 12.36–
12.37). Nevertheless, the case does illustrate how the courts may develop the common law in order to take
account of new situations. More recently, in M v Home Office (1994), the HL showed itself willing to hold
that a minister of the Crown could be in contempt of court for failing to comply with a court order (see
paras 3.25–3.26).
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11. Judge-made law
11.6 These examples reflect the development of the common law in a way which holds the executive to
account. They show the courts performing their traditional role of protecting the rights of the individual
against state interference. However, not every plea to extend the common law is met with a favourable
response. Thus, in the context of the right to privacy, the courts have, on several occasions, shown
themselves unwilling to declare that such a right exists at common law. In Kaye v Robertson (1991), for
example, where a well-known actor was lying sedated in a hospital bed recovering from brain surgery
when a journalist interviewed and photographed him, the Court of Appeal (CA) recognized that this
amounted to ‘a monstrous invasion of privacy’. However, in the words of Bingham LJ (as he then was),
that invasion ‘however gross, does not entitle him to relief in English law’. Similarly, in Malone v
Metropolitan Police Commissioner (1979), where M challenged the legality of the tapping of his telephone,
the Chancery Division was not prepared to recognize a right of privacy in respect of telephone
p. 248 conversations. Sir Robert Megarry V-C reflected on the fact that there was an absence of authority on the
point, but then observed that that in itself should not deter a court from recognizing a right. However, he
opined that:
On the other hand, it is no function of the courts to legislate in a new field. The extension of the existing
laws and principles is one thing, the creation of an altogether new right is another. At times judges must,
and do, legislate; but as Holmes J once said, they do so interstitially, and with molecular rather than
molar motions. Anything beyond that must be left for legislation. No new right in the law, fully-fledged
with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only
Parliament can create such a right.
11.7 The development of a separate tort of privacy was considered to be a likely consequence of the
enactment of the Human Rights Act 1998. Nevertheless, in Wainwright v Home Office (2003), the HL
declined to adopt ‘some high level principle of privacy’ and rejected the argument that such a development
would be necessary in order to comply with art 8 of the European Convention on Human Rights (ECHR). In
the words of Lord Hoffmann:
For the reasons so cogently explained by Sir Robert Megarry in Malone … this is an area which requires a
detailed approach which can be achieved only by legislation rather than the broad brush of common law
principle.
11.8 A further example of judicial reluctance to develop the common law recently occurred in the context
of the death penalty overseas. Thus in Elgizouli v Secretary of State for the Home Department (2020), whilst
Lord Kerr believed ‘that the time has arrived where a common law principle should be recognised whereby
it is deemed unlawful to facilitate the trial of an individual in a foreign country where, to do so, would put
that person in peril of being executed’, the other members of the SC decided the appeal on the narrower
basis that the decision to provide the US authorities with information obtained as a consequence of police
enquiries had been unlawful under Pt 3 of the Data Protection Act 2018.
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11.9 Where Parliament has legislated in a ‘privacy’ field such as data protection, the doctrine of the
legislative supremacy of Parliament (Chapter 4) prevents the courts from ruling on the validity of an Act of
Parliament. However, it is by no means an easy task to draft clear and unequivocal laws. Accordingly, the
courts play a vital role in interpreting the laws made by Parliament.
Interpreting Acts of Parliament
Rules of interpretation
11.10 When interpreting an Act, the orthodox view is that judges strive to ensure that effect is given to the
will of Parliament. However, as Baroness Hale has observed, ‘divining the intention of Parliament is
p. 249 mostly an illusion, because on most points which come before us Parliament did not have any intention at
all’ in that the matter had never been thought of. Accordingly, as the former President of the Supreme
Court further noted, the role of the courts is really ‘to deduce the intention of the legislation from the words
used, read in the light of the statutory purpose’. The doctrine of the separation of powers demands this is
the case, and, as we saw in Duport Steels Ltd v Sirs (1980) (para 2.26), it is sometimes invoked to remind
judges of the need for judicial restraint. To help them in their task, the judges have developed a number of
rules of statutory interpretation. Thus, from time to time reference may be made to the literal rule, the
golden rule, or the mischief rule. The problem with such rules, however, is that they rarely provide a
conclusive answer to the question of interpretation under consideration. Moreover, the answer may be
different depending on which rule is applied.
11.11 Broadly speaking, the courts tend to follow one of two approaches when interpreting Acts of
Parliament. They may apply a literal approach, in which case they focus on the words used in the statute
and accord them their ordinary and natural meaning. Alternatively, a purposive approach may be adopted,
which requires the courts to look beyond the wording of the statute and have regard to the purpose for
which the relevant law was made.
11.12 The literal approach has had some notable advocates in the past. Thus in Scruttons Ltd v Midland
Silicones Ltd (1962), Viscount Simonds observed that the ‘first duty’ of the judge was ‘to administer justice
according to law, the law which is established for us by Act of Parliament or the binding authority of
precedent’. Similarly, when considering the role of the judge, Lord Devlin wrote that:
Judges, I have accepted, have a responsibility for the common law, but in my opinion they have none for
statute law; their duty is simply to interpret and apply it and not to obstruct. I remain unconvinced that
there is basically anything wrong with the rule of construction that words in a statute should be given
their natural and ordinary meaning … But in the end the words must be taken to mean what they say
and not what their interpreter would like them to say: the statute is the master and not the servant of the
judgment.
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11.13 However, more recently, the purposive approach has become increasingly common, especially in the
context of interpreting laws that were made to give effect to European Union (EU) obligations. Where this
was the case, the courts were willing to read words into a statute or delegated legislation in order to ensure
that there was consistency between the national law and the EU law which the national law was passed to
implement.
Ken Lane Transport Ltd v North Yorkshire County Council (1995):
The Welfare of Animals during Transport Order 1992 was intended to implement Directive 91/628/
EEC. It provided that during a journey, the person in charge of transported animals was to ensure
that they were watered, fed, and rested at suitable intervals. The interval between waterings, etc
was not to exceed fifteen hours. The company transported calves from Yorkshire to the south
p. 250 ↵ of France without watering them, etc despite the fact that the journey took more than fifteen
hours. The company was convicted of an offence contrary to s 73(a) of the Animal Health Act 1981.
DC held: dismissing the appeal against conviction, that the 1992 Order was to be construed so as to
accord with the Directive. The definition of ‘journey’ in the Order was of no assistance. Accordingly,
the court would read into the Order the Directive’s definition of ‘journey’, in which case, the whole
transit from Yorkshire to France was one journey of more than fifteen hours’ duration.
11.14 By adopting a purposive approach to the interpretation of legislation, the courts may correct
drafting errors or oversights. Whether this is an appropriate task for the courts to perform is a moot point.
In defence of the approach, it might be argued that the courts are merely seeking to give the legislation the
meaning that Parliament intended. If the courts prove to have been mistaken as to Parliament’s intention,
that body has the means at hand to clarify the legal position by amending the relevant statutory provisions.
11.15 Judicial activism of this sort did not only occur in the context of the interpretation of national laws
passed to implement EU law. Occasionally, the courts have felt it necessary to give a domestic law a
meaning which seems to conflict with the actual wording of the statute.
R v Registrar General, ex p Smith (1991):
S was detained in a secure mental hospital following his conviction for the murder of a complete
stranger and the manslaughter of his cell mate. He had been adopted at a very young age and had
expressed hatred for his adoptive parents. The cell mate had been killed during a psychotic bout
when S believed that he was killing his adoptive mother. S did not know who his natural parents
were. He applied for a copy of his birth certificate under s 51 of the Adoption Act 1976. The Registrar
General refused to supply that information on the basis of medical advice. S sought judicial review
of that decision. He argued that s 51 conferred on him an absolute right to the information. The DC
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11. Judge-made law
refused his application. CA held: dismissing his appeal, that the Registrar General had not acted
unlawfully. Public policy grounds required that statutes should not be interpreted so as to require
the performance of a duty if to do so would enable a person to commit a serious crime.
11.16 The disturbing nature of the facts in ex p Smith helps to explain why the CA reached this conclusion.
In effect, the judges accepted that there was an implied limitation on what was, to all intents and purposes,
an absolute right. The argument would seem to run along the lines of: had Parliament been made aware of
a hypothetical situation which reflected the facts of ex p Smith at the time of enacting the Adoption Act
1976, it would have sought to qualify the right conferred by s 51. However, if we put the facts to one side
and consider the case solely from the standpoint of statutory interpretation, it may be argued that the
decision reflects not so much what the law was, as what it ought to have been.
p. 251 Presumptions
11.17 In addition to rules of interpretation, the courts have recognized the existence of certain
presumptions that are to be applied when construing legislation. Thus, for example, the courts have
presumed that Parliament does not intend to deny access to the courts.
Chester v Bateson (1920):
The Defence of the Realm Regulations 1917 were made under the authority of the Defence of the
Realm Consolidation Act 1914. Regulation 2A(2) provided that: ‘no person shall, without the
consent of the Minister of Munitions take … any proceedings for the purpose of obtaining an order
or decree for the recovery of possession of, or for the ejectment of a tenant of, any dwelling-house
in which a munitions worker is living’. The regulations further provided that it was an offence for a
landlord to go to court without first having sought the permission of the minister to do so. C sought
to recover possession of a dwelling-house that had been let to B. He had not first obtained the
permission of the minister to take proceedings. The justices found: that B was employed in the
munitions industry at the material time; that reg 2A(2) was not ultra vires; and that C ought to have
sought the minister’s consent. King’s Bench Division (KBD) held: allowing the appeal, that the
individual had an ‘elemental right’ to seek justice in the courts. Such a right could not be taken
away by anything other than the express words of a statute. Since no such words were in the 1914
Act, the regulation was invalid.
11.18 More recently, in cases such as R v Secretary of State for the Home Department, ex p Leech (No 2) (1994),
R v Lord Chancellor, ex p Witham (1998), and R (on the application of UNISON) v Lord Chancellor (2017) (see
paras 3.14–3.16) and R (on the application of FB) (Afghanistan) v Secretary of State for the Home Department
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11. Judge-made law
(2020), the courts have described access to the courts as being a ‘constitutional right’. Thus in the first of
these cases, where the applicant succeeded in obtaining a declaration that a provision in the 1964 Prison
Rules was ultra vires in that it went beyond the scope of the authorizing power (s 47(1) of the Prison Act
1952), Steyn LJ (as he then was) observed:
It is a principle of our law that every citizen has a right of unimpeded access to a court … Even in our
unwritten constitution it must rank as a constitutional right.
11.19 A further example of a presumption is that Parliament is presumed not to make retrospective laws
(see paras 3.4–3.7). It applies to statutory defences as well as to offence-creating provisions. Thus in R v CS
(2021), the CA held that s 45 of the Modern Slavery Act 2015 did not have retrospective effect for a number
of reasons, including that there was no positive indication in the Act that Parliament had intended this to
be the case. The presumption against retrospectivity is evident in the words of Lord Reid in Waddington v
Miah (1974) when he observed: ‘So it is hardly credible that any government department would promote or
that Parliament would pass retrospective criminal legislation.’ Given that this remark was immediately
preceded in the judgment by the full text of art 7 of the ECHR (which prohibits retrospective criminal
p. 252 offences and penalties), it also reflects a further presumption: that Parliament is presumed not to legislate
in conflict with the UK’s international law obligations.
11.20 Whilst these presumptions are important, they are merely presumptions. They apply where the
effect of legislation may be unclear due to vague or ambiguous statutory words. They may be rebutted,
however, where legislation is clear and unambiguous. Thus, although it may be ‘hardly credible’ that
Parliament would pass a retrospective criminal statute (although some have argued that this is precisely
what the War Crimes Act 1991 amounts to), if Parliament chose to pass such a law and it was devoid of
ambiguity, the courts would, as a consequence of the doctrine of the legislative supremacy of Parliament,
follow the Act.
Interpretation and the Human Rights Act
11.21 The strong interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998
(paras 4.72–4.86) represents a very significant development. As we have already seen, it has enabled the
HL to imply a provision into an Act of Parliament: see R v A (No 2) (2001) (paras 4.77–4.80). Such judicial
creativity does, however, raise the question whether the courts are interpreting or making the law. If it is
the latter, this may be reconciled with the traditional limits on the constitutional role of the courts on two
grounds: that Parliament has in s 3 of the 1998 Act expressly instructed the courts to act thus; and that any
reassessment of the limits of the role of the judge as statutory interpreter is confined to the context of
human rights protection.
Further Reading
Bailey, D and Norbury, L Bennion, Bailey and Norbury on Statutory Interpretation (8th edn, 2020) LexisNexis.
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11. Judge-made law
Lord Bingham The Business of Judging (2000) OUP.
Lord Devlin ‘Judges and Lawmakers’ (1976) 39 MLR 1.
Ekins, R ‘The Intention of Parliament’ [2010] PL 709.
Elliott, M and Hughes, K (eds) Common Law and Constitutional Rights (2020) OUP.
Fairclough, T ‘Common-Law Constitutional Rights: One Step Forward, Two Steps Back?’ [2020] CLJ 204.
Lady Hale ‘Beanstalk or Living Instrument? How Tall Can the ECHR Grow?’ Barnard’s Inn Reading 2011.
Kirby, M ‘Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty’ [2006]
Melbourne University Law Review 576.
Lord Lester ‘English Judges as Lawmakers’ [1993] PL 269.
p. 253 ↵ Lord Mance ‘The Role of Judges in a Representative Democracy’. Lecture given during the Judicial Committee of
the Privy Council’s fourth sitting in the Bahamas (24 February 2017).
Lord Reid ‘The Judge as Law Maker’ (1972) 12 Legal Studies 22.
Lord Sales ‘Law Reform Challenges: The Judicial Perspective’ (2018) 39 Stat LR 229.
Lord Sales ‘Legislative Intention, Interpretation and the Principle of Legality’ (2019) 40 Stat LR 53.
Sir Michael Tugendhat ‘Privacy, Judicial Activism and Democracy’ (2018) 23 Comms L 63.
Walshaw, C ‘Recent Developments in Statutory and Constitutional Interpretation’ (2019) 40 Stat LR 1.
Self-Test Questions
1 Assuming that law-making is a legitimate part of the judicial function, what constitutional limits are there on
the exercise of that function?
2 What do you think Lord Bingham meant when he observed in relation to the judicial development of the law:
‘It is one thing to alter the law’s direction of travel by a few degrees, quite another to set it off in a different
direction’?
3 To what extent, if any, can it be argued that in R v Registrar General, ex p Smith (1991), the CA overstepped the
proper bounds of the judicial function?
4 In L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd (1994), Lord Mustill remarked that
the presumption that laws made by Parliament are not retrospective was ‘rooted in simple fairness’. What do
you think he meant by this?
5 What does it mean to say, as Lord Sales and others have, that ‘the courts do not have democratic legitimacy to
change the laws’? When might it be legitimate for the court to trespass on the law-making function of
Parliament?
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6 Do you agree with Lord Sales that s 3 of the Human Rights Act 1998 ‘creates a sort of statutory power to review
and amend the statute book to achieve compatibility with human rights’?
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