Introduction
The statement that "the primary duty of the court is to interpret the law and not to legislate from the bench" reflects a foundational principle of the UK's constitution: the separation of powers. This doctrine, in its simplest form, holds that the three branches of the state – the legislature (Parliament), the executive (government), and the judiciary (the courts) – should have distinct roles. In this model, Parliament's role is to make the law, and the judiciary's role is to interpret and apply it in specific cases. This essay will argue that while this statement represents the constitutional ideal, the reality is more complex. The nature of the common law system and the need to interpret statutes in a modern context mean that judges inevitably engage in a form of law-making. This essay will explore the traditional interpretive role of judges before examining key instances where they have clearly developed, and even changed, the law, particularly in the development of the common law and through the application of the Human Rights Act 1998. It will conclude that while judicial law-making is a reality, it is a practice that operates within important constitutional limits.
The Orthodox View: Judges as Interpreters
The traditional view is that judges are the servants of Parliament and their function is simply to ascertain Parliament's intention as expressed in the words of a statute. This is known as the declaratory theory, which suggests that judges do not make law but merely declare what the law has always been (Loveland, 2021). To achieve this, the courts developed several rules of statutory interpretation. The most straightforward is the literal rule, which requires judges to give words their plain, ordinary, and literal meaning. An example of this strict adherence can be seen in Whitely v Chappell (1868) EWHC QB J80, where the defendant was acquitted of impersonating a person entitled to vote because the person he impersonated was dead and therefore not technically ‘entitled to vote’. The court applied the literal meaning of the words, even though this led to an absurd result that was likely contrary to Parliament's intention.
Where the literal rule would lead to absurdity, judges may apply the golden rule to modify the wording slightly to avoid that outcome. Further, the mischief rule, established in Heydon's Case (1584) 76 ER 637, allows courts to look at the 'mischief and defect' the statute was designed to remedy. More recently, the judiciary has adopted a purposive approach, which involves looking for the overall purpose of the legislation. The case of Pepper v Hart [1993] AC 593 was significant in this regard. The House of Lords held that, in limited circumstances, courts could refer to reports of parliamentary debates (Hansard) to discover the intended meaning of ambiguous legislation. This development arguably demonstrates a commitment to upholding Parliament's will, confirming that the judicial role is to find and apply the law Parliament has created, not to invent a new one. These interpretive tools reinforce the idea that the judiciary's primary function is interpretation within the framework set by Parliament.
Judicial Law-Making in the Common Law
Despite the traditional view, it is undeniable that judges make law, most obviously in the development of the common law. The law of tort and contract, for example, is not primarily derived from statute but from centuries of judicial decisions. A landmark example of judicial law-making is the case of Donoghue v Stevenson [1932] AC 562. Prior to this case, there was no general duty of care owed by a manufacturer to the ultimate consumer. When Mrs Donoghue found a snail in her ginger beer, she could not sue in contract as she had not bought the drink herself. In his judgment, Lord Atkin created the 'neighbour principle', establishing that a person must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour. This was not an interpretation of a statute; it was the creation of a new, fundamental principle of negligence law that has been the foundation for the tort of negligence ever since. The judges in this case responded to a changing society of mass production and created law to fill a gap where Parliament had not legislated.
A more controversial example, particularly relevant to law and policing, is the case of R v R (Marital Exemption) [1991] UKHL 12. For centuries, the common law held that a husband could not be guilty of raping his wife, as her marriage vows implied irrevocable consent to sexual intercourse. By 1991, this rule was widely seen as anachronistic and offensive. The House of Lords unanimously decided to abolish this exemption, declaring that a husband could indeed be guilty of raping his wife. This was a clear example of the judiciary changing the law to align with modern social values. Lord Keith stated that the old rule was a "common law fiction" which "has no useful purpose to serve today". This was a significant act of judicial law-making, effectively creating a new criminal liability. While it was widely welcomed, it demonstrates the judiciary acting in a quasi-legislative capacity, departing from centuries of precedent to reform the law.
The Human Rights Act 1998: A New Dimension
The introduction of the Human Rights Act 1998 (HRA 1998) has added another layer of complexity to the debate. The Act requires UK courts to take into account judgments from the European Court of Human Rights and, most importantly, Section 3 requires that "So far as it is possible to do so, primary legislation… must be read and given effect in a way which is compatible with the Convention rights". This gives judges a powerful instruction to interpret, and if necessary strain the meaning of, statutes to ensure they comply with human rights.
The case of Ghaidan v Godin-Mendoza [2004] UKHL 30 is a powerful illustration of this. The case concerned the Rent Act 1977, which allowed the surviving spouse of a deceased tenant to take over the tenancy. The House of Lords had previously held that this did not apply to a surviving same-sex partner. However, in Ghaidan, the Law Lords used Section 3 of the HRA 1998 to interpret the words "as his or her wife or husband" to include same-sex partners. Critics argued that this went beyond interpretation and amounted to rewriting the statute (Elliott and Thomas, 2020). However, the majority argued they were merely giving effect to Parliament’s intention as expressed in the HRA 1998 itself, which was to make domestic law compatible with Convention rights. This shows judges using an explicit legislative mandate to engage in a very strong, creative form of interpretation that comes very close to legislating. However, the HRA 1998 also contains a safeguard for parliamentary sovereignty. Under Section 4, if a court cannot interpret a statute to be compatible with Convention rights, it can issue a 'declaration of incompatibility'. This does not invalidate the Act but puts political pressure on Parliament to amend the law. This shows that even under the HRA 1998, the judiciary's law-making power has limits, and ultimate legislative authority remains with Parliament.
Conclusion
In conclusion, the statement that the court's primary duty is to interpret and not legislate is a correct, but incomplete, description of the judicial function in England and Wales. The principle of parliamentary sovereignty means that judges must defer to Parliament as the ultimate law-maker, and their primary role is indeed to apply the law as enacted. The rules of statutory interpretation are the tools for this task. However, the common law system would not have been able to evolve without judges making law to fill gaps and adapt to social change, as seen in cases like Donoghue v Stevenson and R v R. Furthermore, modern statutes like the Human Rights Act 1998 have given judges an explicit mandate to interpret legislation creatively in order to protect fundamental rights, as shown in Ghaidan v Godin-Mendoza. Therefore, while judges cannot and do not legislate in the same way as Parliament, they are not mere automatons applying a fixed set of rules. They perform a vital, secondary law-making function, which is normally incremental and respectful of constitutional boundaries. The duty to interpret remains primary, but it exists in a dynamic tension with the need for the law to develop and remain just, a process in which the judiciary is an essential participant.
References
Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
Loveland, I. (2021) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 9th edn. Oxford University Press.
A v Secretary of State for the Home Department (No 2) [2004] UKHL 56
Donoghue v Stevenson [1932] AC 562
Ghaidan v Godin-Mendoza [2004] UKHL 30
Heydon's Case (1584) 76 ER 637
Pepper v Hart [1993] AC 593
R v Harris (1836) 7 C & P 446
R v R (Marital Exemption) [1991] UKHL 12
Whitely v Chappell (1868) EWHC QB J80
