In the last section, we start to consider the extent to which judges are bound by the doctrine of precedent. The system that has evolved has aspects of both certainty and flexibility. So, maybe you can start to see how the courts, in particular supreme court at the top of the hierarchy, have some room to make new law. Even though, case law is seen as a key source of English law. It is to some extent still contentious to make the statement that judges make law. But why is this? Think back to what was discussed in week two about the separation of powers. The role of parliament is to make laws, and the role of the court is to adjudicate on laws. So, constitutionally speaking, it is not part of the role of the judges and courts to make law. The declaratory theory of law argues that judges do not in fact make law, they merely declare what the existing law is. How is this to be reconciled with the fact that judges clearly do develop and change the common law? Incremental changes to the common law happen frequently but very occasionally, the courts have made major changes to the law. A good example of this is the case of R against R. In this case, the house of lords abolished the previous rule the man could not be liable under the criminal law for raping his wife. This rule had been established 250 years previously, but the house of lords justified making a change in the law by reference a changing social conditions. The fact that parliament had plenty of opportunities to change the law through legislation but had not done so. The question of judicial lawmaking has intensified since the Human Rights Act 1998. Section three of the act requires judges to interpret English laws wherever possible to make the compliant with the rights protected by the European Convention on Human Rights. You'll learn more in next week's session about what these rights are. You might remember from week four that the house of Lords, in the case of Ghaidan and Godin-Mendoza u section three, to interpret the rent act. So that references to the surviving spouse in the act included the survival of a homosexual couple living together. The courts have made some very controversial decisions using the human rights act. For example, in the sphere of the law on terrorism, in the one on the Bell Marsh case, the house of lords had to rule on legislation, which given the government power to detain without charge non-UK citizens who was suspected of terrorist activities. The house of lords found that the detention of nine foreign nationals without charge was incompatible with article five of the convention, the right to liberty, and Article 14, non-discrimination. The hazard laws made a declaration of incompatibility under section four of the human rights act, and the government then repeal the relevant legislation. Is interesting to see here, that although a section for a declaration of incompatibility can not quash primary legislation, and cannot force the government to change the law. Political pressure means that the government will usually do so, even with an issue as sensitive as national security and terrorism. But this doesn't mean that judges will always decide to changed the law. One area where the courts have refused to intervene and change the law is on the controversial question of assisted suicide. In the landmark case of Nicklinson and a ministry of justice. The majority of the supreme court justices considered to the question of whether assisted suicide should be legal or not, was a question for parliament not the courts.