Judge-made Law
| DOI | 10.1093/slr/hmr002 |
| Date | 21 June 2011 |
| Pages | iii-iv |
| Year | 2011 |
| Published By | Oxford University Press |
Statute Law Review 32(2), iii–iv, doi:10.1093/slr/hmr002
© The Author 2011. Published by Oxford University Press. All rights reserved.
For permissions, please e-mail: journals.permissions@oup.com.
Advance Access Publication June 21, 2011
iii
EDITORIAL
Judge-Made Law
The tensions between legislation and common law have a long history. In truth,
often unacknowledged, they reflect in part a struggle between the desire of poli-
ticians to acquire an effective monopoly over legal policy and its application, as
well as other aspects of public policy, and the judiciary to retain a significant por-
tion of their historic role of developing large areas of the law. Over time, in defer-
ence to democracy, the courts in general give ground and the politicians are
always ready to take it.
In the United Kingdom recently, it seems that politicians are in assertive mode.
The European Court of Human Rights held in 2005 that an unqualified removal
of the franchise from prisoners was a violation of the European Convention has
since met with a reluctant and limited commitment to alter United Kingdom do-
mestic law to comply with the Convention.1 As that issue has rumbled on, the
UK Supreme Court held this year that the Sexual Offences Act 2003, section 82,
was incompatible with the European Convention on Human Rights 1950, Article 8,
in subjecting sex offenders sentenced to 30 months or more to notification re-
quirements on a sex offenders register for the rest of their lives, without allowing
any opportunity for review of the continuation of the requirements.2
This latter judgment prompted the Prime Minister to observe, in response to a
parliamentary question: ‘I am appalled by the Supreme Court ruling. We will
take the minimum possible approach to this ruling . . . I can also tell my hon.
Friend that a commission will be established imminently to look at a British Bill
of Rights, because it is about time we ensured that decisions are made in this Par-
liament rather than in the courts’.3 And this was echoed shortly afterwards by
the Home Secretary, who said: ‘It is time to assert that it is Parliament that makes
our laws, not the courts . . .’.4
Essentially, these are predictable political responses to unpalatable exercises of
interpretation, particularly in the areas of human rights and public law generally.
However, there have been other UK judicial common law developments with
1 Hirst v. the United Kingdom (No 2) [2005] ECHR 681.
2 R (on the application of F)v. Secretary of State for the Home Department [2010] UKSC 17.
3 523 HC Debs col 955 16 February 2011.
4 Ibid., col 959.
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