Judge's Ability to Re-write the law.

[Hairyloon]

The lawyers on this board seem to be in universal agreement that where a judge finds a law sufficiently anatheamic, he can overrule it, and thus through precedent re-write it.

Under which circumstances are they allowed to do this, and how does that tally with democracy?

[dls]

For every ten sentences each of us write, at least 8 will prove to have ambiguities when pushed.
Legislation may do slightly better.
Therefore judges are asked every day to look at a sentence, see an ambiguity and to resolve it. There is even a statutory procedure which takes this a little further in Human Rights cases, where under the 1998 Act, judges are enjoined to 'read down' statutes to meet human rights standards.
They do what you ask about every day, and three times a day.

Where a judge sees that the interpretation may be contentious, he may refuse to re-interpret a section, saying that a proposed change would be something for parliament.

One of the constant criticisms of Lord Denning was his over-readiness to allow judge made law. Most of the time, a delicate balance is maintained.

Your question would be better if legislation was never ambiguous. That will never happen, and the particular source of your current quizzicality is not the best example.
There are two readings. Neither is absolutely and obviously and finally correct of itself. The grammar may lean toward your reading - without excluding the found meaning. The found meaning accords with common sense and justice, and the 'easier' reading would lead to absurdity.
Myself I would prefer a court to take the more sensible way ahead.
Litigants and parliamentarians and rule makers are perfectly capable of seeking a clarification and correction if necessary.
Rules committee for the Employment Tribunals?

[zebedee]

The passage of time creates need in its own right.

[Hairyloon]

For every ten sentences each of us write, at least 8 will prove to have ambiguities when pushed.

How hard are they allowed to push?

There is even a statutory procedure which takes this a little further in Human Rights cases...

Can I trouble you for a reference?

Your question would be better if legislation was never ambiguous. That will never happen, and the particular source of your current quizzicality is not the best example.

It is a dreadful example. There isn't any ambiguity. Even if we accept the force required to push some ambiguity into rule 3(8), to remain ambiguous, it is necessary to ignore rule 3(9) altogether.

There are two readings...
The found meaning accords with common sense and justice, and the 'easier' reading would lead to absurdity.

"Would" gives an indication of certainty. The rules as written could possibly lead to absurdity, but only if there is an appellant who is extremely persistent and fairly stupid, and an EAT that lacks the initiative to put a stop to him.

Myself I would prefer a court to take the more sensible way ahead.

I'd prefer that a court follows the rules that Parliament has set for it, and if those rules are not sensible, or even if they are only ambiguous then it should apply to have those rules amended.
There are no reasonable grounds for failing to do so.

[atticus]

The OP misunderstands why dls and I agree with HHJ Clark's reading of certain rules, and disagree with the OP's interpretaion.

What is anathema to us, is the OP's idea of a never ending loop of hopeless appeals. There has to be an end, and the rules specify how that end is arrived at.

[Hairyloon]

What is anathema to us, is the OP's idea of a never ending loop of hopeless appeals.

It is not my idea, it is what you get if you write a DO UNTIL loop in a mindless system.
The rules have a DO UNTIL loop. I presume the EAT are not mindless and therefore do not require a rewrite of the rules to prevent the anathema.

There has to be an end, and the rules specify how that end is arrived at.

They do not.

[Smouldering Stoat]

Shirley one of the primary reasons the rule of law evolved was to deliver both certainty and finality to disputes. So an interpretation of the law which provided neither ought to be rejected, no?

[atticus]

exactamundo!

[Hairyloon]

Shirley one of the primary reasons the rule of law evolved was to deliver both certainty and finality to disputes. So an interpretation of the law which provided neither ought to be rejected, no?

Few, if any rules provide certainty or finality on their own. The whole of the thing must be considered.

[atticus]

So any system of justice that is fair to all parties requires that a time should come when it is
time to call it a day. Thus the time should come when the losing party must accept an
adverse decision for better or worse. The successful party is entitled to nothing less. The
more generous the scope for challenging decisions by appeal or review, the greater the
chance of eliminating error. But successive proceedings involve delay and additional
expense. And the pall of uncertainty continues to hang over the parties until their disputes
have finally run their course and an unchallengeable decision emerges. Certainty, even if less
than perfect, has great value. At least the parties can get on with their lives knowing exactly
where they stand.

http://www.supremecourt.gov.uk/docs/speech_111014.pdf