Declaratory theory and its abandonment
The landmark shift came with the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, wherein the House of Lords announced it would treat previous decisions as 'normally binding' but depart when 'it appears right to do so'. The Statement acknowledged that 'too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.' Though used sparingly—fewer than two dozen times before the House's replacement—it legitimised explicit overruling and acknowledged the law-making function of the apex court.
Conway v Rimmer [1968] AC 910 was the first substantive application, overruling Duncan v Cammell Laird [1942] AC 624 on Crown privilege. The House held that courts, not ministers, had final say on whether public interest immunity barred disclosure. This reassertion of judicial authority over executive claims marked a new willingness to depart from precedent in the service of legal principle.
Marital rape and common law evolution
R v R [1992] 1 AC 599 remains the most controversial exercise of common law creativity in criminal law. The House of Lords abolished the centuries-old rule that a husband could not rape his wife, which rested on the legal fiction of irrevocable consent by marriage. Lord Keith, delivering the leading speech, held that the common law was 'capable of evolving in the light of changing social, economic and cultural developments.' The exemption, never embodied in statute, contradicted modern values and piecemeal statutory erosion of marital immunity. While retrospective application troubled some commentators, the European Court of Human Rights in SW v United Kingdom (1996) 21 EHRR 363 upheld the decision, finding the development reasonably foreseeable and consonant with Art 7 ECHR.
Privacy and incremental recognition
Campbell v MGN Ltd [2004] UKHL 22 illustrates creativity in tort. Although English law historically lacked a general privacy tort, the House extended the equitable action for breach of confidence to protect informational privacy, catalysed by Art 8 ECHR and the HRA s 6 duty on courts (as public authorities) to act compatibly with Convention rights. Baroness Hale remarked that the 'old action for breach of confidence' had been adapted to recognise privacy interests, a development 'not the creation of a new cause of action' but 'the absorption of Convention rights into English law.' The rhetoric was incremental, but the effect was recognisably creative.
Statutory interpretation and judicial legislation
Ghaidan v Godin-Mendoza [2004] UKHL 30 pushed HRA s 3 to its limits. The Rent Act 1977 Sch 1 para 2 granted succession rights to a 'surviving spouse' or person 'living with the original tenant as his or her wife or husband'. The Court of Appeal held that a same-sex partner could not qualify. The House of Lords reversed, reading the provision to include same-sex partners notwithstanding the heterosexual language. Lord Nicholls held that s 3 required this reading to avoid discrimination contrary to Art 14 read with Art 8, even though it contradicted Parliament's original intention. This bold interpretive move blurred the line between construction and legislation, prompting academic criticism that s 3 permits judicial law-making under the guise of interpretation.
Negligence and duty of care innovation
Caparo Industries plc v Dickman [1990] 2 AC 605 restated the test for duty of care in negligence, replacing broad principle with a structured three-stage inquiry (foreseeability, proximity, fair-just-and-reasonable). While this might appear restrictive, the third limb—whether imposing a duty is 'fair, just and reasonable'—confers broad discretion. Subsequent cases have used this limb to refuse duties in novel contexts (pure economic loss, public authority liability), illustrating how judicial creativity can both expand and contract liability. Lord Bridge emphasised that 'concepts of proximity and fairness' involve 'a combination of factual and policy considerations,' openly acknowledging judicial policy-making.
Limits of creativity
Airedale NHS Trust v Bland [1993] AC 789 saw the House authorise withdrawal of artificial nutrition from a patient in persistent vegetative state, holding it lawful where continued treatment was not in the patient's best interests. Yet every Law Lord emphasised the decision's difficulty and the urgent need for legislation. Lord Browne-Wilkinson remarked, 'I cannot help feeling that it would be desirable for Parliament to intervene to regulate these tragic cases.' The unanimous anxiety underscored that some questions—however urgent—press at the edges of legitimate judicial law-making.