Introduction
The question of which institution, the courts or Parliament, plays a more important role in shaping the law is central to understanding the constitution of the United Kingdom. On one hand, the doctrine of Parliamentary sovereignty, as articulated by commentators such as A.V. Dicey, positions Parliament as the supreme law-making body, able to create or abolish any law it sees fit (Dicey, 1915). On the other hand, the vast body of common law, created and developed entirely by judges, and the judiciary's essential role in interpreting statutes, suggest a more active and creative function for the courts. This essay will discuss the respective roles of both Parliament and the courts in shaping English law. It will be argued that while Parliament holds ultimate constitutional supremacy, the courts' day-to-day function of interpreting legislation and developing the common law gives them a uniquely practical and often more immediate role in shaping the law as it is applied. However, due to Parliament's power to override any judicial decision through statute, it ultimately remains the more powerful and therefore more important institution.
The Supremacy of Parliament
The traditional starting point for any discussion on UK law-making is the principle of Parliamentary sovereignty. This constitutional doctrine means that Parliament is the highest source of law in England and Wales. Its legislative power is, in theory, unlimited. An Act of Parliament can override any existing legal rule, whether it originates from a previous statute or a judicial decision (the common law). This supreme authority allows Parliament to enact far-reaching legal changes that can fundamentally reshape society.
For example, the Equality Act 2010 consolidated and reformed decades of anti-discrimination law, creating a comprehensive legal framework to protect individuals from unfair treatment. Similarly, the National Health Service Act 1946 established the NHS, a monumental piece of social legislation that changed the legal relationship between citizens and the state regarding healthcare. These statutes demonstrate Parliament’s ability to create entirely new and complex areas of law from scratch, a power the courts do not possess. Courts are reactive; they can only make law when a relevant case is brought before them. Parliament, by contrast, can proactively identify and address social or economic issues through legislation. Therefore, in terms of creating broad, overarching legal frameworks, Parliament’s role is unparalleled and primary.
The Judicial Role in Developing Common Law
Despite Parliament’s supremacy, a significant portion of English law is not found in statutes but in the common law, which is law made by judges through the system of judicial precedent. In areas such as the law of contract and the law of tort, the foundational principles have been established and developed by the courts over centuries. The doctrine of precedent, or stare decisis, means that courts are bound to follow the decisions of higher courts in cases with similar material facts, ensuring consistency and predictability.
The landmark case of Donoghue v Stevenson [1932] AC 562 is a classic example of judicial law-making. In this case, the House of Lords established the ‘neighbour principle’, which laid the foundation for the modern law of negligence. There was no statute that created a general duty of care towards one's neighbour; this fundamental legal concept was created by judges. This demonstrates that courts do not merely apply law but can create it in areas where Parliament has not legislated. Furthermore, courts can adapt the common law to reflect changing social values. A powerful example is the House of Lords’ decision in R v R (Marital Exemption) [1992] 1 AC 599, which abolished a 250-year-old common law rule that a husband could not be criminally liable for raping his wife. The court recognised that the old rule was an unacceptable fiction in modern society. This shows the judiciary shaping the law in a dynamic way, bringing it into line with contemporary morality. Parliament later put this decision on a statutory footing in the Criminal Justice and Public Order Act 1994, but it was the court that initiated the change.
The Judicial Role in Statutory Interpretation
Even where Parliament has legislated, the courts play a crucial role in shaping the law through statutory interpretation. The language used in statutes can often be ambiguous or unclear, and it falls to the judiciary to determine Parliament's intention. In doing so, judges can significantly affect the scope and application of a statute. They have developed various rules and approaches to assist them, such as the literal rule, the golden rule, and the mischief rule. The modern trend is towards a purposive approach, where the court seeks to interpret the legislation in a way that gives effect to its overall purpose (Slapper and Kelly, 2017).
A clear example of interpretation shaping the law is R v Allen (1872) LR 1 CCR 367. The defendant was charged with bigamy under a statute which stated that ‘whosoever being married shall marry any other person during the life of the former husband or wife… shall be guilty of a felony’. A literal interpretation would mean the offence was impossible to commit, as a person who is already married cannot legally ‘marry’ someone else. The court therefore interpreted ‘shall marry’ to mean ‘shall go through a ceremony of marriage’, thereby ensuring the statute could function as Parliament intended. While the court claimed to be giving effect to Parliament's intention, it was the judicial interpretation that gave the statute its practical meaning. In this sense, the law is not simply what the statute says, but what the courts say it means.
This interpretive role has been significantly enhanced by the Human Rights Act 1998 (HRA). Section 3 of the HRA requires courts to read and give effect to primary and subordinate legislation in a way which is, so far as it is possible to do so, compatible with the rights in the European Convention on Human Rights. This has led to some very creative interpretations. In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords used section 3 to interpret the Rent Act 1977. The Act allowed the surviving spouse of a protected tenant to succeed to the tenancy. The court read the word ‘spouse’ as including the surviving partner in a long-term same-sex relationship, even though this was almost certainly not what Parliament intended in 1977. This decision effectively changed the law to provide equal treatment, demonstrating a significant law-shaping power that goes beyond traditional interpretation.
Conclusion: A Question of Power and Practice
In conclusion, both Parliament and the courts have profoundly important roles in shaping the law of England and Wales. Parliament’s importance lies in its constitutional supremacy. It can create comprehensive new legal codes, make radical policy changes, and has the final word on what the law is, as it can legislate to overrule any judicial decision. This makes it the ultimate source of legal authority.
However, the courts’ role is arguably more constant and direct. Through the development of the common law, judges have created entire areas of private law, such as negligence. Through statutory interpretation, they determine the practical effect and meaning of the laws passed by Parliament. The HRA 1998 has further empowered the judiciary to read legislation in a way that protects fundamental rights, sometimes in ways that depart from Parliament’s original intent. In this way, the courts are in a continuous dialogue with the law, shaping and refining it on a case-by-case basis.
To say one is "more important" than the other is to oversimplify a complex relationship. Parliament holds the ultimate power, but the judiciary gives the law its life and texture. Nevertheless, because Parliament's power is proactive, unlimited in scope, and capable of overriding any other source of law, it must be considered the senior partner in the relationship. Therefore, while the courts' role is undeniably vital and more frequently engaged in the detailed shaping of legal rules, Parliament's ultimate constitutional authority means it retains the more important role in shaping the law.
References
Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. London: Macmillan.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. London: Routledge.
Case Law
Donoghue v Stevenson [1932] AC 562
Ghaidan v Godin-Mendoza [2004] UKHL 30
R v Allen (1872) LR 1 CCR 367
R v R (Marital Exemption) [1992] 1 AC 599
Legislation
Criminal Justice and Public Order Act 1994
Equality Act 2010
Human Rights Act 1998
National Health Service Act 1946
Rent Act 1977
