The Judiciary's Role in English Constitutional Law: Interpretation, Precedent, and Parliamentary Sovereignty

The judiciary’s role in the making and interpretation of law as well as the relationship between the judiciary and legislation is one of the important features of the English constitutional law. Due to the implementation of the doctrine of parliamentary sovereignty, the role of the judiciary in interpreting the legislation in England is also influenced by the principle the law enacted by the parliament is sovereign and cannot be reviewed by the judiciary. At the same time, the law made by the judiciary is precedent under the doctrine of stare decisis and leads to the development of the common law. On the other hand, the principle of parliamentary sovereignty has an impact on the process or method of judicial review as the judiciary has used the principle of ultra vires to ensure that the executive actions are in accordance with the powers given it by the legislature. These aspects are significant to understanding the role of the judiciary in the process of creating, interpreting and executing of the English law and in its relationship with legislation in particular. In the English constitutional law, the Parliament is the body that makes the law and the judiciary is the institution that interprets the law (Duport Ltd v Sirs [1980] 1 WLR 142, 1980, p. 157 ). However, it is also a fact that common law for the most part is the law made by the judges of the English courts and upheld through the principle of state decisis (Martin, 2013). However, the function of the judiciary of law making and interpretation has to be seen in the context of the doctrine of parliamentary sovereignty, the principle of separation of powers, and the role of the courts in the democratic governance system. These aspects are explained below and help explain the way the judiciary plays a role in the creation of law, its interpretation and the relationship between judiciary and legislation as well as the ways in which judiciary is restricted or limited in these powers due to the convention of the parliamentary sovereignty.

The doctrine of parliamentary sovereignty regulates the relationship between the judiciary and the legislation so that the law made by the parliament is not subject to the review of the courts. Although parliamentary sovereignty is a matter of convention in the UK, and it places the parliamentary law at the apex or pinnacle, one of the areas where the role of the judiciary does come into relevance is in context of the principle of rule of law. In Dr Bonham’s Case, Sir Coke had observed that the common law regulates the Acts of Parliament in the event the latter are “against common right and reason, or repugnant, or impossible to be performed”, then they can be adjudged to be void” (Dr Bonham’s Case 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638 (1610)., 1610, p. 646). Although Sir Coke’s statement is seen as one of the first important statements on judicial review, this has not led to the significant dilution of parliamentary sovereignty convention (Helmholz, 2009). This is because the convention has become an important part of the constitutional law. It can be said that in England and Wales, the judiciary does make the law under certain circumstances although generally only Parliament is considered to be competent for the function of law making. For this reason, judicial law making in the English law can be controversial or problematic as explained by Sir Philip Sales where he notes that the legislature is the authority that is formulated to make law as it represents the people and because judges represent no-one, their law making can be problematic in a democratic governance system (Sales, 2012 ). Nevertheless, common law is replete with examples of judicial law making. This may be done where the judiciary is not making a law that is contrary to the parliamentary legislation as explained by Lord Neuberger, who observed that courts do not rewrite the laws legislated by the Parliament, but may make laws in other situations, that is where parliamentary legislation does not exist (Neuberger, 2015). Lord Neuberger also notes that more English law was made in the courts than by the legislature about 150 years ago (Neuberger, 2015). Examples of judicial law making include some seminal cases in the English law covering a variety of fields include law of crimes, tort, property and contract, which testify to the fact that judges do make law. The neighbour principle was laid down by the judiciary and is one of the seminal principles in the law of negligence (Donoghue v Stevenson [1932] UKHL 100, 1932). The principle of strict liability is another example of law making by the judiciary with long term impacts on the tort law (Rylands v Fletcher [1868] UKHL 1, 1868). In the field of company law, the principle of corporate personality as a separate person was clarified by the judiciary (Salomon v Salomon Co Ltd [1896] UKHL 1, 1896); and the principle of the piercing of corporate veil was developed to address some of the potential problems arising out of misuse of corporate structure. The court also went to the extent of criminalisation of marital rape even before the Parliament had done so through legislation (R v R [1991] UKHL 12, 1991). Other example can be seen in the case of Airedale NHS Trust, in which the House of Lords allowed discontinuance of treatment and medical support of a vegetative patient even when lawful euthanasia was not recognised under the common law (Airedale NHS Trust v Bland [1993] A.C. 789, 1993). These examples indicate that there has been a role played by the courts in England and Wales for the making of original law.

The role of judiciary with relation to the interpretation of the law has undergone significant change after UK took the membership of the EU, as the courts in the UK are required to apply the EU law under the European Communities Act 1972, which means that the judiciary is required to interpret the legislation in the UK as per the EU law. This has led to the judiciary suspending the operation of the domestic legislation if there is some contradiction between this and the EU law (in R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1990] 2 AC 85, 1990). The English courts have sought to give effect to the EU law and also to ensure that the jurisprudence laid down by the EU courts is given effect to (R (Ullah) v Special Adjudicator [2004] UKHL 26, 2004). Brexit may change this situation however. At the same time, it is important to note that the principle of parliamentary sovereignty was held by the Supreme Court to override Article 50 provisions on the withdrawal from the EU (Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5, 2017). Recently, the role of the English courts has also been related to some form of judicial activism, which is explained in the context of four kinds of behaviour including departure from precedents, unexpected interpretation of legislation; defiance of governmental policy; and development of the common law (Dickson, 2015). Despite these aspects of relationship between the judiciary and the legislation, it is also to be admitted that generally, the courts in England and Wales work to uphold the supremacy of the parliamentary law. Thus, even the instrument of judicial review has been developed from the perspective of the parliamentary legislation so that judiciary can review administrative acts that may be illegal, irrational, or improper in the matter of procedure (Council for Civil Service Unions v Minister for Civil Service [1985] AC 374, 1985). Even with respect to making of new law, the judiciary has been reticent barring some exceptional cases like R v R. Thus, in another case the House of Lords held that it was not competent to alter a common law presumption related to criminal responsibility of minors and the Parliament should legislate on the matter (C v DPP [1995] UKHL 15 , 1995). To conclude, the judiciary has played an important role in creating and developing the law as common law is largely the result of judicial law making. Courts also make original laws under certain circumstances. The primary function of the judiciary is to interpret the law however, because the parliament is the principal law making body in England. On the other hand, the principle of parliamentary sovereignty means that the parliamentary law is beyond the powers of judicial review. Judicial review when exercised in English context is for the purpose of ensuring that the executive authorities act within their powers as given by the legislature. In other words, it is another way of upholding the principle of parliamentary sovereignty through the principle of ultra vires. Nevertheless, the judiciary has been given some power of judicial review as per the provisions of the European Communities Act because it has to interpret the law made in English parliament as per the principles of the EU law. This has been used by the English courts at times to suspend the parliamentary law and refer the matter to the EU courts. After the implementation of Brexit however, it is not clear how far this will be still relevant to the English law.

References

Airedale NHS Trust v Bland [1993] A.C. 789 (1993).

C v DPP [1995] UKHL 15 (1995)

Council for Civil Service Unions v Minister for Civil Service [1985] AC 374 (1985).

Dickson, B., 2015. Activism and Restraint within the UK Supreme Court. EJoCLI, 21(1).

Donoghue v Stevenson [1932] UKHL 100 (1932).

Dr Bonham’s Case 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638 (1610). (1610). Duport Ltd v Sirs [1980] 1 WLR 142 (1980).

Helmholz, R., 2009. Bonham’s Case, Judicial Review and the law of nature. Journal of Legal Analysis, 1(1), p. 325.

Martin, J., 2013. The English Legal System. London : Hachette.

Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 (2017).

Neuberger, L., 2015. Judge not, that ye be not judges: Judicial decision making, F A Mann Lecture. [Online] Available at: https://www.supremecourt.uk/docs/speech-150129.pdf R v R [1991] UKHL 12 (1991).

R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1990] 2 AC 85 (1990).

R (Ullah) v Special Adjudicator [2004] UKHL 26 (2004).

Rylands v Fletcher [1868] UKHL 1 (1868).

Sales, S. P., 2012 . Judges and Legislature: Values into Law. Cambridge Law Journal, 71(2), p. 287–296.

Salomon v Salomon Co Ltd [1896] UKHL 1 (1896).

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