Introduction
In the constitutional framework of the United Kingdom, the principle of parliamentary sovereignty establishes the legislature, Parliament, as the supreme law-making body. The traditional view, famously articulated by A.V. Dicey, is that Parliament can create or repeal any law it chooses, and that no other body can override or set aside its legislation (Dicey, 1915). However, this formal position does not fully capture the dynamic nature of law-making in England and Wales. This essay will argue that while the legislature remains the ultimate source of law, the statement that courts play a more significant role is an oversimplification. The courts play a crucial, but ultimately subordinate, role in the law-making process through the development of the common law and the interpretation of statutes.
The Supremacy of the Legislature
The primary law-making institution in the UK is Parliament. Its main function is to create new laws and amend existing ones through the legislative process, resulting in Acts of Parliament or statutes. These statutes are the highest form of law in the domestic legal system. Parliament can legislate on any subject matter, as seen in transformative pieces of legislation such as the Equality Act 2010, which consolidated and strengthened anti-discrimination law, or the Human Rights Act 1998, which incorporated the European Convention on Human Rights into domestic law. The authority of Parliament is such that it can even legislate to overturn a judicial decision. A classic example is the War Damage Act 1965, which was passed to retrospectively reverse the House of Lords' decision in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75. This demonstrates that Parliament holds the final word, confirming its primary role in law-making.
The Judicial Role in Creating Common Law
Despite Parliament's supremacy, judges are not mere legal mechanics who only apply the law. A significant portion of English law, particularly in areas like contract, tort, and criminal law, was not created by Parliament but was developed by judges through the system of judicial precedent. This is known as the common law. In landmark cases, judges have created new legal principles or radically altered existing ones. For instance, the modern law of negligence was effectively born from the House of Lords’ decision in Donoghue v Stevenson [1932] AC 562, which established the 'neighbour principle'. This was a clear act of judicial law-making where no statute applied. More recently, in R v R (Marital Exemption) [1992] 1 AC 599, the House of Lords abolished a 250-year-old common law rule that a husband could not be criminally liable for raping his wife. This decision recognised that societal views had changed and updated the law accordingly, showing a clear law-making function (Partington, 2022).
The Judicial Role in Statutory Interpretation
The courts' law-making function is also evident in their role as interpreters of statutes. The language of legislation can be ambiguous or may not cover every possible scenario. It is the judiciary's task to determine the meaning of an Act of Parliament and apply it to the facts of a case. This interpretive process can significantly shape the practical effect of a law. Under section 3 of the Human Rights Act 1998, for example, courts have a duty to read and give effect to primary legislation in a way which is compatible with Convention rights "so far as it is possible to do so." This has led to some very creative interpretations. In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords used its power under section 3 to reinterpret the Rent Act 1977, extending the right of a surviving partner in a homosexual relationship to succeed a statutory tenancy, even though the Act's original wording referred to a person living with the tenant "as his or her wife or husband." This shows the courts actively modifying the effect of legislation, a role that goes beyond simple application and verges on law-making.
Conclusion
In conclusion, the assertion that the courts play a more significant law-making role than the legislature is not accurate. The constitutional principle of parliamentary sovereignty ensures that Parliament remains the supreme and ultimate law-maker, with the power to create, amend, and repeal any law, including those established by judicial precedent. However, it is equally inaccurate to dismiss the judiciary's own law-making capacity. Through the development and evolution of the common law and the purposive interpretation of statutes, particularly under the Human Rights Act 1998, judges undoubtedly shape and create law. Their role is therefore a vital and creative one, but it is one that is carried out in the shadow of parliamentary supremacy. The courts perform a secondary law-making function that complements and fills the gaps in the legislative framework, but they cannot ultimately challenge the authority of Parliament.
References
- Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. Macmillan.
- Partington, M. (2022) Introduction to the English Legal System. 16th edn. Oxford University Press.
- Burmah Oil Co Ltd v Lord Advocate [1965] AC 75
- Donoghue v Stevenson [1932] AC 562
- Equality Act 2010
- Ghaidan v Godin-Mendoza [2004] UKHL 30
- Human Rights Act 1998
- R v R (Marital Exemption) [1992] 1 AC 599
- Rent Act 1977
- War Damage Act 1965
