Judicial Discretion by Nalina | Add
Comments Law - English Legal System Judicial Discretion by Nalina
Question 2 Year 2001 Page 155 Revision Planner (Specific Judiciary Question) With the present system in the English Legal System, judges have very little discretion in their decision-making. Discuss.
Question 1 Year 1998 Page 150 Revision Planner "The traditional approaches to statutory interpretation have lost their hold in recent years. Judges are now much more free in their approach to interpretation than previously"
Question 1 Year 2001 Page 156 Revision Planner (Home) 'The rules of statutory interpretation are a sham. The only real rule is discretion'. Do you agree?
Question 6 Year 2002 Page 157 Revision Planner (Overseas) Is the process of statutory interpretation dependent upon the level of activism of individual judges?
Judicial discretion does exist there are 2 phases - by individual judges and the institutionalized issues with regard to judiciary collectively.
To what extent does the element of judicial discretion affect the outcome of judicial decision-making?
The fundamental role / responsibility of the judiciary is the interpretation of statutes and the application of principles decided in the past to present cases: Judicial Precedent.
In recent times, various developmental processes have indicated a change in attitude and response on the part of the judiciary in relation to the application of the judicial discretion. Modern development dictates that judges cannot rely on traditional or conservative role any longer. Evidence exists as to how the courts and judiciary is coping with the implementation of HRA 1998. Explain briefly what the conservative role of the judge is - basic argument of separation of powers and parliamentary supremacy ie role of judge subordinate to Parliament.
The role of judicial discretion Theoretical Argument: Professor HLA Hart Concept of Law Professor Ronald Dworkin Law's Empire & Taking Rights Seriously
Professor HLA Hart He said judges had "strong" discretion to make law and the main reason is because of the existence of the 'open-textured' nature of language. It means the indeterminancy of linguistic / language often gives rise to a variety of interpretations. This often stands as an obstacle in the decision-making process. Thus, there is a need to appreciate this problem which justifies the use of strong discretion.The inconsistencies prevalent in the doctrine of judicial precedent. According to Hart the doctrine of judicial discretion is far from providing a consistent, rational and just decision. Hart justifies the application of strong discretion.
Professor Ronald Dworkin He is of the view that judicial discretion is objectionable on the basis that the judges are not an elected judiciary and the need to respect the principles of separation of powers / parliamentary supremacy. This is also to avoid the problem of making retrospective decision. Judges should not be given judicial discretion because we need to respect individual rights where individuals are to be treated with equal concern and respect.
It is Dworkin's contention that when there appears to be no answer to the decision and judges are under a duty to discover the appropriate principles and policies surrounding a legal problem. Principles justify individual rights: Re Sigsworth; Riggs v. Palmer
Those who come to equity must come with clean hand.
Airedale NHTS v. Bland (Lord Hoffman): Life & Death There were 2 principles prevalent - self determination and that of survival. Victim was in a vegetative state. The judge had to play the role of balance two equally competing principles of significance. Judges had to use social, political, moral and economical principles to decide on the case. They decided to allow Bland to die in preservation of his dignity.
Analysis The theoretical argument advanced by both Professor Hart and Dworkin respectively in practice is of importance in relation to the levels of activism which is required to be demonstrated by the judiciary in the discharge of their respective roles and responsibilities. It is submitted that judicial discretion is indeed a key feature in the judicial making-process. However, the essential argument to address is the extent to which such discretion is demonstrated.
Applying Dworkin's view, it is appreciated that judges should be imposed with limitation when indulging in discretion as their role is limited to providing a constructive interpretation.
Question 6 Year 2002 Page 157 Revision Planner (Overseas) Is the process of statutory interpretation dependent upon the level of activism of individual judges?
Affirmatively agree that judicial discretion does operate in the field of statutory interpretation as demonstrated with the requirements of the purposive interpretation. However, it is inaccurate to state that the entire process of statutory interpretation is determined by judicial discretion. Consider briefly the application of the literal rule.
Ex parte Connor Ex parte Puttick Ex parte Smith
Transexualism Cases such as Corbett v. Corbett to the most recent decisions agains Bellinger v. Bellinger would demonstrate the conservative attitude of the judiciary in relation to recognising the right of individual private life and the right to marry in the context of UK legislation. Whilst there are comparative analysis from other jurisdication eg Denmark where judges has essentially recognise the position of both homosexuals and transsexuals but the system in the UK is slow to develop such discrimination in the system. There has been certain development in legislation to protect transsexuals from discrimination in employment and vocational training but such recognition have been limited.
In 2002, the ECHR in the cases of Goodwin v. UK and I v. UK, in relation to transsexual people held that the UK was in breach of Article 8 of ECHR and Article 12 of ECHR respectively. Thus it is ironical that the judiciary in the case of Bellinger v. Bellinger whilst recognising transsexualism as a fundamental issue in recent times failed to take the opportunity to have some development in recognising the ruling adopted by the European court in the 2 cases above. Instead the HOL felt it is appropriate to be an issue of Parliamentary intervention and thus suggested that the Bill was necessary to determine the position of such individual. Another area of concern is in relation to the question of cohabitees who are not subject to legal regulation if in comparison with the status of married couples in UK. In this respect, the Courts had the opportunity to legislate upon dispute concerning existing rights which the law has given limited recognition but yet demonstrated a prejudicial and discriminatory outcome. Analysis A more controversial area are eg in family law matters in cases such as cohabitation and transsexualism in which judicial activism is clearly not apparent on the premise of public policy argument. Here for instance we have recent decisions and developments which clearly exemplify the restrictive application of judicial attitude and conduct where judges have called for Parliamentary intervention to make a change in the law eg in the Bellinger v. Bellinger, the judiciary explicitly held it is surely not the intention of the Parliament that to legislate this matter and until such time such rights of transsexual should be denied. It is submitted this attitude represent the purposive attitude which the judiciary justifies on the basis of social, moral, political and historical considerations.
Social Services Department (Local Authority) The House of Lords had the opportunity to consider the application of the HRA 1998 where there has been a failure by the local authority to protect applicant from child abuse. There was clearly a breach of Article 3 (in relation to inhumane or degrading treatment) and a breach of Article 13 (failure of the domestic law to afford a remedy to that effect). On the basis of these articles, the local authority was held liable.
Z v. United Kingdom; TP v. United Kingdom; Osman v. United Kingdom These recent decisions demonstrate a potential breach of statutory duty on the part of the certain public authority. The attitude of the judiciary in the past is to provide a literal interpretation to the outcome of the statutes where intention of Parliament was merely to impose a discretionary power on public authorities to carry out their responsibilities - thus the creation of immunity on such authority. However, in recent times the implication of the HRA 1998 would suggest that the judges are under an obligation to provide a purposive interpretation of such statutes as demonstrated by the above cases where there had been a fundamental breach of the relevant articles of the European Convention of Human Rights.
