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Questions attempted: 2(a)(b), 4(a), 1(b)Question 2(a)The role of the judges is o interpret laws according to intention of Parliament. However, there are some difficulties of interpreting statutes which the courts will need to solve. Poor drafting of statutes may create absurdity. There is also usage...

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Questions attempted: 2(a)(b), 4(a), 1(b) Question 2(a) The role of the judges is o interpret laws according to intention of Parliament. However, there are some difficulties of interpreting statutes which the courts will need to solve. Poor drafting of statutes may create absurdity. There is also usage of broad terms which results in wide meaning and the court may need to impose one. Furthermore, language is naturally imprecise on occasions. Judges have developed various approaches in statutory interpretation. These are sometimes referred to as ‘rules of interpretation’. The first method of interpretation is the literal rule. This approach requires the court to apply the ordinary, dictionary meaning of words used by Parliament, even if it leads to absurdity. Lord Esher MR in the case of R v The Judge of the City of London Court (1982) stated that, “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity”. An example of the literal rule was used in the case of London and North Eastern Railway Co v Berriman (1946). A railway worker was killed by a train, and his widow attempted to claim damages. The relevant statute provided that this was available to employees killed while engaging in ‘relaying or repairing’ tracks; the dead man had been doing maintenance and oiling, which the court held did not come within the meaning of ‘relaying or repairing’. This case shows that literal rule respects Parliament’s Supremacy by focusing upon the words used by Parliament rather than attempting to second guess its intention in enacting the relevant provision. However, the use of literal rule leads to absurd results which results injustice to the parties. The second method of for interpretation is the golden rule. This is a modification of the literal rule. The judge begins by adopting a literal interpretation but if this leads to an absurd result the judge may modify the words to some extent to prevent the absurdity. This rule was set out by Lord Wensleydale in the case of Grey v Pearson (1857). He said that “the grammatical and ordinary sense of words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further”. The golden rule is often divided into narrow and wider meanings. The former occurs when two alternative meanings can be applied to a provision, one of which will result in absurdity. The court is to apply the meaning and this will not have this effect. An example case is Adler v George (1954), the law forbade the people to obstruct Her Majesty’s Forces in prohibited areas. The defendant argued that since he was inside the prohibited area this law should not apply on him. The courts here modify the words and found him guilty. The wider meaning applies when there is only one meaning to the provision which will result in absurdity or repugnance. This occurred in the case of Re Sigsworth (1935) where the court introduced common law rules into legislative provisions to prevent the estate of a murderer from benefiting from the property of the party he had murdered. The golden rule has the

benefit over the literal rule of avoiding absurd results which cannot have been intended by Parliament by looking at the actual effect of particular interpretation. The third method is mischief rule. This is the oldest approach. As set out in Heydon’s Case (1584) the approach involves the judge taking several steps in order to reach an interpretation. The first step is to consider the state of the common law before the Act was passed. The second is to consider the ‘mischief’ or shortcoming that the Act was intended to cover. The judge then interprets the Act in a way that achieves the intended purpose. The classic example of the use of the mischief rule can be seen in the case of Royal College of Nursing v DHSS (1981). The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses. It was held that nurses could legally do so as the mischief of the Act was aimed at doing away with back street abortions where no medical care was available and abortions were carried out in unhygienic conditions. In recent years, the judges appear to be more comfortable using the purposive approach. They seem to take a wider view than the mischief rule and essentially trying to decide what Parliament intended to achieve in passing an Act. This approach encourages the judge to look for the “spirit of the Act”, and to read words into or out of the Act when this is necessary. Denning LJ in Magor & St Mellons RDC v Newport Corporation (1950) stated that, “We do not sit here to pull the language of Parliament to pieces and to make nonsense of it. We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis”. The case for this authority is the case of Pepper v Hart. The House of Lords accepted that the courts are now ready to adopt an approach that seeks to give effect to the “true purpose” of legislation and as a result will consider extraneous material that has a bearing on the background to the legislation by referring to Hansard. This approach truly reflects the intention of Parliament. Each of the rules of statutory interpretation has its merits and drawbacks. A court may use any rule that they wish. The literal rule may sit in non-controversial cases, but is arguably bad suited to those where it produces absurd results contradicting to the purpose of the statutory provision. The golden rule may remedy the shortcomings of the literal rules but does not really consider the legislative purpose underlying the statute. The mischief rule is perhaps the most satisfactory approach, as it attempts to understand the purpose underlying the provision in question. Indeed, largely as a result of European influences the courts are increasingly utilizing a purposive approach to statutory interpretation which emphasizes a provision’s legislative purpose when interpreting it.

Question 2(b) Statutory interpretation is a process of interpreting statutes by the judges. There are no strict rules that judge must follow, it has been left to the courts to decide what method to use, however the judiciary have adopted a variety of approaches in aiding them to interpret statute. The four basic approach that they have developed are known as the literal rule, golden rule, mischief rule and purposive approach. Moreover, the Human Rights Act 1998 has brought about fundamental changes in statutory interpretation. When the Government introduced the HRA 1998 it intended that Acts of Parliament should be interpreted, so far as possible, to be compatible with the Convention. S.2 requires that, in deciding any question which arises in connection with a right protected by the Convention, the courts ‘must take into account’ any relevant judgements made by the European Courts of Human Rights. S.3(1) of the HRA 1998 provides that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. The extent of the interpretative obligation imposed by S.3 was considered by the House of Lords in the case of R v A (2002). The case concerned S.41 of the Youth Justice and Criminal Evidence Act 1999. This prohibited a defendant in a rape trial from using evidence about the claimant’s previous sexual behaviour without permission of the court. The House of Lords held that S.41 had unlawfully deprived the defendant of his right to a fair trial under Article 6 of the European Convention of Human Rights. Lord Steyn took the approach that it should be possible to interpret a statute to be compatible with Convention Rights, even if this meant doing violent to the actual wording of the Act. This is therefore far removed from traditional approaches to statutory interpretation which focus only on following very closely the exact wording of the Act. This case illustrates that the requirement to read the Act to be compatible with the European Convention of Human Rights can now be more important than exactly what the wording is. The courts took a similarly broad approach to S.3 in Ghaidan v Mendoza (2004). In this case, the House of Lords was faced with the issue of whether a surviving homosexual partner could be the spouse of a deceased tenant, for the purposes of succeeding to a statutory tenancy under the provisions of the Rent Act 1977. It was held that it was possible to “read down” the 1977 Rent Act under the HRA 1998 S.3 so that it was compliant with the rights in the Convention (Art 14 discrimination). The court decided that the failing could be remedied by reading the words “as his or her wife or husband” in the Act as meaning “as if they were his or her wife or husband”. The provision of the Rent Act 1977 should be construed in accordance with the HRA 1998 so as to give equal succession rights to a homosexual couple living “as if they were husband and wife”. However, there are limitations on the use of S.3 of the Act. This cane be seen in the case of Bellinger v Bellinger (2003). The House of Lords held that it was not possible to use s.3 to interpret the Matrimonial Causes Act 1973 Act to be compatible with Convention rights. To use

s.3 in this way would bring about a major change in the law (on the legal recognition of gender reassignment), and would raise issues that were properly a matter for parliament, not the courts. Declarations of incompatibility which is under S.4 of the HRA 1998, are intended to be used as a last resort. Declarations of incompatibility have no effect on the cases in which they are made, nor do they affect the validity or continuing operation of the legislation. Although the HRA 1998 gives the English courts the power to declare Acts of Parliament incompatible with the ECHR, they do not have the power of, invalidating the Act. However, such declaration create pressure for action to be taken. In most cases where there has been a declaration of incompatibility, the Government has brought forward amending legislation by way of a remedial order under s.10 of the HRA 1998 or through ordinary legislation. In conclusion, it is submitted that although courts now have a greater flexibility under the HRA, compared to previous methods there is a limit to the flexibility. The recent development of the purposive approach gave the power to courts to be more flexible but the HRA allowed courts to strain meaning and read down meanings that is not seen in purposive approach.

Question 4(a)

The civil justice system is the means provided by the state for citizens and businesses to peacefully resolve legal disputes and enforce their rights. There were numerous reviews and reforms aimed at making civil justice system quicker and cheaper for litigants. In March 1994, Lord Woolf was commissioned by the government to conduct a thorough investigation into the civil justice system of the UK. He was asked to come up with ways to improve the system and o solve all the problems that plagues it. In attempting to identify the problems within the UK civil justice system, Lord Woolf first set out the principles that would underpin and ideal and perfect civil justice system. There are some disadvantages of the system identified by the Civil Justice review. First, it is too expensive. As a result of the fact that trials were usually lengthy and constantly delayed for some reason or another, and seeing that time is money, there was a massive increase in cost because lawyers would do whatever they could to win a case with no regard as to how long or much money it took from the part of the litigant. The nature of the trial procedure within the UK civil justice system allowed parties to dispute to argue endlessly over matters regarding procedure. This in turn caused delay. Also, the time between the statement of claim being issued and the hearing itself was too long. As a result of the above problems, we had the reforms done by Lord Woolf in April 1999. First is the pre-action protocols. These are the rules on how parties should behave before a fullblown trial. The aim was to attempt to resolve or clarify a dispute before the issue of the statement of claim. One of the most significant innovation of the 1999 reforms is the case management. This occurs before the trial. The judges will sit down with the lawyers and lay out exactly the path that case is going to take. Lord Woolf also introduced the track system to allocate the cases. The small claims track desal with actions with a value less than £ 10,000. The fast track deals with actions of a value between £ 10,000 and £ 25,000. Multi-track deals cases which are too complex for the fast track which is above £ 25,000. Lord Woolf saw this as key to reducing the timescale of litigation. Evaluation of the Woolf reforms suggest that they were partially successful in promoting cooperation and settlement and reducing delay. However, there has been some concern that Lord Woolf’s reforms increased costs rather than reducing costs. The pre-action protocols combined with case management may have front-loaded costs. Professor Zander, a leading academic, felt that the reforms were fundamentally flawed, rather than prone to temporary hiccups. Below is an analysis of the main concern he has expressed. Lord Woolf identified delay to be one of the main problems in civil justice system and he went on to state that the root cause of this problem was the adversarial nature of trial proceedings. Michael Zander, in referring to a study done by KPMG Peat Marwick in which 7 causes for delayed were identified which are nature of the case, delay caused by the parties and by their representatives, external factors, judiciary, court procedures, and court administrations. Zander observed that lawyers always playing the game was most certainly not a factor which caused delays. Furthermore, Zander feels that case management is appropriate for only a

minority of cases and that the key is to identify these. He has remarked that judges do not have the time, skills or inclination to undertake the task of case management. Case management was the heart of Lord Woolf’s reforms and he actually derived it from the American experience. However, they themselves are having problems with it regards to time and cost. Case management has increased the cost of litigation. Study done by RAND corporation in California concerned 10,000 cases that were analyzed from Federal Courts in 16 states. The study showed that case management had very little effect on the time it took to settle cases. It has increased costs to litigants because case management was inclined to increase rather than reduce the workload of lawyers. On the other hand, case management led to an appropriate 20- hour increase in lawyer work hours overall. Their wok increased with the need to respond to the court’s management directions. Even though there have been some criticisms identified, there are also advantages as well. In our legal system, judicial impartiality is a fundamental component of justice. We expect our judges to be above all else, impartial arbiters so that legal disputes are decided according to the law free from the influence of bias or prejudice. Secondly, there is certainty provided by the use of precedent. Civil court system also provides flexibility because law need to be flexible to meet the needs of a changing society, and case law make changes far more quickly than Parliament. Disputing parties can also make appeals in civil court system. Besides that, there is also legal expertise. The judges will be able to guide the parties through the court process. Clearly the Civil Justice System underwent significant reforms in 1999, but further reforms could be made. The reforms intended to focus on reduction in cost and delay, however they did not escape criticism and reduction in cost is still considered to be a debatable area. But the reforms were a step in the right direction and were deemed triumphant as they have resulted in justice being accessible to wider proportion of society especially when problem is of small nature and can be quickly and cheaply dealt in lower courts.

Question 1(b)

Traditionally it is for the legislature to make law and for the judiciary to give effect to that law. The judiciary are not elected representatives of the people and therefore lack legitimacy for law-making in a democratic society governed by the rule of law. This strict approach to the role of the judiciary was illustrated by William Blackstone and is known as the ‘declaratory theory’ which stated that the role of the judge is to declare what the law is and not to make it. However, in the English common law system the judiciary do perform a limited lawmaking function in incrementally developing the common law to ensure that it keeps pace with changes in social and economic conditions and remains sufficiently flexible to accommodate new situations. Lord Lowry suggested five factors when dealing with judicial law making. Where the solution to a problem is doubtful, judges should be vary of imposing their own answer, judges should be careful when looking at the areas when Parliament has previously rejected to amend the law or has passed legislation ignoring the area altogether, social policy issues are not suitable for judicial law making for example LGBTQ, fundamental legal doctrines should not be set aside and judges should not change the law unless that they can be sure that the change will achieve an element of finality and certainty with regards to the issue in question. This guidance suggests that the judges should take a quite a cautious approach to changing the law. Un practice, however, the judges do not seem to be following these guidelines. For example, n R v Dica (2004), the Court of Appeal overruled an earlier case of R v Clarence (1888) and held that criminal liability could be imposed on a defendant for recklessly infecting another person with HIV. This change in the law was made despite the fact that the Home Office had earlier decided that legislation should not be introduced which would have imposed liability in this situation. The Home Office observed that this was a case of social and public health policy. There are some circumstances where judges should make law. First in adapting to social changes. In 1952, Lord denning gave a lecture called ‘The Need for a new equity ‘arguing that judges had become too timid adapting the law to the changing condition of society. They were, he felt, leaving this role too much to parliament, which was too slow and cumbersome to do the job well. Lord Scarman in Mcloughlin v O’Brien, the function of the court is to make decisions according to principle and if the results are socially unacceptable, Parliament can legislate to overrule them. He felt that risk was not the case law might develop too far but that it would stand therefore be unable to adapt to the changing needs of society. For example, a survey of 19 active Law Lords found that they had a duty to develop the common law. A case in which the House of Lords was prepared to introduce a major change to the law was that of R v R (1992). The House of Lords justified the abolition of a 250-year-old rule that a man could not be criminally liable for raping his wife on the ground that it was not creating a new offence. It was, instead, removing an assumption that was no longer acceptable in current social conditions. Lord Dyson commented in a speech in March 2014, this was a change to the law that the judiciary felt confident in making.

Lord Reid had previously suggested that the basic areas of common law are appropriate for judge-made la...