Policy Considerations and the Law
Created | Updated May 22, 2004
Policy issues are concerned with the courts upholding both political and public policy through their decisions. Political policy concentrates on the balance of power between the Judiciary and the democratically-elected Parliament, whilst public policy is concerned with the effect a decision in one case may have in the wider context. In this essay I shall look at each of these two policies in turn, considering their use in tort law.
The first consideration is how far the judiciary should make law. Parliament is democratically elected and is therefore supreme, a power which it exercises by the passing of legislation. In some cases, the judiciary have made law by their decisions, as they felt that the current law would have brought an unjust ruling, whereas in some cases, such as Fitzpatrick v Sterling Housing Association Ltd (1997), they have allowed an unjust ruling, as to decide otherwise would violate the policy of not usurping the parliamentary function.
To what extent judges should make law is a matter of debate. In the early 1950s Lord Denning1 stated that parliament took too long to legislate, and so the judiciary should adopt a larger, necessary, role. This view was echoed by Lord Scarman in McLoughlin v O’Brian (1982) when he invoked the doctrine of parliamentary supremacy to support his view, arguing that if parliament didn’t like a judicial decision, they could legislate against it. Whilst Paterson found in 1967-73 that the judiciary were largely in favour of developing the law as society required, the statement of Lord Lowry in C (a minor) v DPP (1995) has also become very influential. In the case, he declined to change the law stating that the judiciary should be wary of imposing an answer to a problem if the answer was doubtful and should be cautious when dealing with areas that parliament had actively ignored. He stated that fundamental legal doctrines should not be set aside lightly (the case did involve the doctrine of doli incapax) and that judicial legal creativity should only be applied where it will definitely settle the issue. He further stated that this activity was least suited to areas of social concern. This approach seems to give due reverence to parliament, but the former Parliamentary counsel F.A.R. Bennion argued2 that judges still have a developing propensity to usurp parliament, a propensity which he argued was shown in Kleinwort Benson Ltd v Lincoln City Council (1998) and DPP v Jones (1998).
The question then is whether or not judges should attempt to do justice by changing the law, or adopt the utilitarian approach of doing injustice in certain cases (such as Fitzpatrick) in order to preserve the policy of parliamentary supremacy. Sometimes, however, as in cases such as that of Miss B (2002), a case arrives which requires immediate action, so the judiciary have no choice but to make the law. In general though, if judges are inclined to make law, they usually do so only with consideration to the position of parliament, to avoid making a different choice, as in President of India v La Pintada Compania Navigacion SA (1985), and should avoid areas of law which parliament is considering at the time.
Public policy concerns the utilitarian approach of possibly doing injustice to an individual in one case, to prevent setting a precedent and opening the floodgates for litigation. Judges have to limit the scope of liability avoiding, as Cardoza CJ stated, ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’. This attitude is considered necessary to maintain existing systems. Insurance companies, for example, would either go bust, or substantially increase their premiums if they lost too many cases, and organisations such as the police would find it difficult to operate if they had to divert resources to fighting legal cases, and the possibility of litigation would be continually present in the minds of officers, leading to an over-cautious approach, which would not best serve the system. For this reason, the police are largely protected against litigation, as seen in Hill v Chief Constable of West Yorkshire (1988), where the West Yorkshire police were unsuccessfully sued for not catching Peter Sutcliffe, the Yorkshire Ripper, quickly enough due to negligence. Allowing this claim to succeed would have set a precedent for a wealth of claims against the police for not solving cases, placing too great a burden on them, so the case was dismissed. These issues can be difficult to decide, and involve a utilitarian balance. Traditionally, the judiciary have denied that they pay attention to policy issues, but following the three-fold test of Caparo Industries plc v Dickman (1990), which included a fourth factor considering policy, they are now more ready to admit the influence of policy.
Policy then is an important consideration which the judiciary must consider, but the question is how far should they take account of the issues? They are to an extent bound by the doctrine of stare decisis but again how far are they bound? In theory at least, the judiciary are bound by precedent. Ronald Dworkin3 argued the ‘interpretive approach’ that there is very little discretion for the judiciary when deciding cases. They merely identify the legal principles from previous cases and identify whether justice will be done in the current case, from both their perspective, and the perspective of society (i.e. a policy issue). Whilst this would seem to restrict judges to following what has gone before, the theory does allow room for them to avoid the precedent in order to do justice. The legal system certainly allows this. A higher court than the one where the precedent was set can overrule it, or if it is the same case, reverse it. Since the Practice Statement 1966, the House of Lords has also been able to overrule itself. More importantly, rather than change precedent, a court can distinguish the case it is hearing, suggesting that another precedent may be more applicable. This fits with David Kairys’ theory that judges are guided not by precedent, but by policy, and their own views. Precedents are cited purely to ‘justify’ the decision. Whilst Kairys feels that this a natural consequence, the more cynical John Griffith4 believes that the judiciary deliberately cite policy and precedent in this way to preserve their views, which are influenced by the typical background of male, white, upper class, public school and Oxbridge judges.
In conclusion then, it would perhaps seem right that the judiciary allow political and public policy to influence their decisions, in order to prevent the breakdown of society. This view is supported by Jeremy Waldron5, who believes that decisions should be made without bias, but with respect to the legal ‘sacred cows’ of Parliamentary supremacy, precedent, fairness, certainty, and public interest. What is an issue though is how far judges should exercise these considerations. Lord Devlin argued that such considerations, especially where the issue is controversial, could be divided into dynamic (where the issue is still active and bitterly debated) and activist (where the issue has been settled, with society resting on one side). The judiciary should only become involved in the latter, he argued, leaving the former to Parliament. This could be the answer to how far policy issues are used as, when engaged in the dynamic approach, the views of the judiciary could lead to them adopting precedents and policies which eventually end up on an opposite side to those of Parliament and society. As we have seen, however, sometimes there is no choice, and even with these warnings, the courts must decide the case before them, and it can often be difficult to do injustice to the individual for the sake of society.
1The Need for a New Equity (1952)2In the 19th March 1999 issue of the New Law Journal.3Law’s Empire (1998)4The Politics of the Judiciary (1997)5The Law (1990)
