A judge is a public officerauthorised to hear and decide cases in a court of law.1The primary role of the judicial is to adjudicate upon legal disputes …. ‘Thisinvolves interpreting, applying legislation, developing and pertaining thecommon law’.2 Thisessay will consider how broadly the judicial power can be used to correctly shapethe law in addition to how their powers may also be restricted. In order to doso, it will first analyse different areas of statutory interpretation, commonlaw and outcomes of cases.Although there are contrary perspectives, it will be argued that while judgesare slightly restricted in their power to shape the law it is evident that innumerous cases by going beyond their scope of power justice is able to beserved.
3 Statutory interpretation is asystem by which courts apply and interpret the meaning of words in cases. Thereare three rules and one approach. The literal rule can be defined as ‘givingwords their plain, ordinary, and literal meaning’4using the dictionary at the time the act was passed for each word withoutembellishment. This is illustrated in the case of Whiteley v Chappell5 where by using the literal rule on thisoccasion a dead man was not a “a person entitled to vote” thus Whiteley couldnot be convicted. By restricting the powers of judges to do exactly whatparliament has said, whether or not it makes sense in practical terms ‘can leadto thoughtless decisions where the meaning in the wider context is ignored orlost.
‘ 6 thus,leading to an unjust or absurd decision such as the poor widow in LNER v Berriman7. In essence, the literal interpretationsignificantly limits judicial power to shape the law as they are restricted bynot only parliament but also to the natural limitations of the language. Contrastingly, the mischief rulegives judges the most discretion as the rule is intended to rectify any defectin the statute.
8The four principles followed are expressed in Heydon’s case.9 The expansion of judicial power can be seen inthe case of Smith v Hughes10 where the mischief rule was applied tointerpret that the prostitutes were doing what the statute was trying toabolish so they were convicted under the Street Offences Act 195911. Though it is an infringement on the separationof powers, this form of judicial law making allows room for law to develop andin doing so closes any loopholes where the wording of law does not cover.Furthermore, by attempting to deduce parliaments intention judges are able tocorrectly shape the law to avoid unjust outcomes. Through amending and abolishingcommon law, does parliament limit judicial power to shape it? A.
V. Dicey defines parliamentary sovereigntyas “the right to make or unmake any law whatever; and no person … (has) aright to override or set aside the legislation of Parliament.”12 Diceyconsidered parliamentary sovereignty as the primary principle and all elsesubordinate to it. In comparison to other countries such as the United Statesof America which states that under article 3, (S2) of the constitution “Thejudicial Power shall extend to all cases, in law and equity, arising under thisconstitution, the laws of the United States … (and) to controversies”13the same thing cannot be said for the United Kingdom. In general, judicialpower is limited as courts cannot overrule parliaments legislation. Lord Reidreiterates this point as he states “The Court has no concern with the manner inwhich Parliament or its officers carrying out its standing order perform thesefunctions.14 Having said this, a declaration ofincompatibility under the Humans Right Act15may be declared where courts are unable to interpret statutes in a manner whichis in accordance with the conventional rights. The case of Ghaidan v Ghodin-Mendoza16demonstrates this in a way that did not discriminate against homosexualsunder the interpretation of the Rent Act 1977.
17in essence judges must try to interpret legislation in such a manner that theyprotect an individual’s right, and so by declaring a statue as incompatiblethis allows judges to shape the law correctly.18 This essay has established that toan extent the powers that judges have are restricted. This can be demonstrated when interpreting thelegislation as in an effort to respect the will of parliament and itssovereignty judges apply the statute for its word for word meaning even when itleads to an absurd outcome. Generally, there is a way around each restrictionfor instance by declaring a statue as incompatible or by using a differentapproach to interpretation. Taking everything into consideration it could besaid that by judges going beyond their scope of power they are able to shapethe law correctly.