Principles and Policies (Judicial Creativity) (5)

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  • Policy and Principles
    • There must be a balance between the roles of parliament/ judiciary
      • It is the role of parliament to create law as they are the supreme legislative authority in the UK.
        • Lord Ratcliff said ''it is unacceptable constitutionally that there should be two sources of law making at work at the same time''
          • Formulation of policy is for parliament to decide
    • Ronald Dworkin distinguished between principle and policies; he said that principles are concerned with rights and should always be applied by judges whilst policies are concerned with achieving social and political goals and are the responsibility of the legislature
      • For example, the term ''innocent until proven guilty'' is a principle, while the public health system is a policy
  • Judges making policy decisions
    • Some judge have to make policy decisions. E.g. in Gillick judges made the policy decision that under 16's should be given contraception if they wish to have it
    • In the Coroners and Justice Act 2009 s.54 Loss of Control; had a sexual infidelity exclusion as parliament said that due to policy considerations sexual infidelity should not be included in the qualifying triggers (Clinton 2012). This is an example of where policy decisions can be seen in criminal law.
    • Policy decisions also appear in tort law, as shown in Alcock v CCSY when Lord Oliver limited the number of potential victims due to policy considerations


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