Gavin Howe
Judges in the UK have traditionally been seen as declaring or interpreting the law, rather than creating it. However, there are several instances where judges have played a role in shaping the law. This is particularly true in cases where there is no express law or where existing laws are unclear or ambiguous. In these situations, judges must interpret and apply the law according to the specific case at hand, which can effectively create new legal precedents or doctrines. While judges are not democratically accountable in the same way as elected politicians, their decisions can have a significant impact on the development of the law. This has led to debates about the appropriate role of judges in the legal and political systems and the potential implications for their impartiality and independence.
| Characteristics | Values |
|---|---|
| Judges' role | To uphold the laws made by the parliament |
| Judges' power | Interpreting and applying the law enacted by Parliament |
| Judges create laws | Yes, in several areas |
| Judges declare laws | Yes |
| Judges interpret statutes | Yes |
| Judges are democratically accountable | No |
| Judges are representative of the wider community | No |
| Judges comment on issues | Yes, but must be cautious |
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What You'll Learn
Judges interpret statutes
While judges in the UK do not create laws, they play a crucial role in interpreting statutes to ensure their effective application in various contexts. This process, known as statutory interpretation, involves judges examining the language of a statute to determine its meaning and how it should be enforced.
The interpretation of statutes is a complex task, as words can have multiple meanings or different meanings depending on the context. Judges may refer to the full statute to understand the specific part being considered, a process known as intrinsic aid. They may also use extrinsic aids, drawing on sources outside the statute, such as dictionaries, textbooks, and earlier statutes, to clarify non-legal terms and understand the legislative intent.
There are several rules and approaches that guide judges in interpreting statutes. One traditional approach is the literal rule, which requires judges to consider the plain, ordinary meaning of the words in the statute rather than what they might imply. This approach aims to give effect to the legislation's literal meaning, even if it leads to an undesirable outcome. Another approach is the purposive approach, which focuses on determining the meaning and effect of the legislation by applying the mischief rule and the golden rule.
The mischief rule and the golden rule are applied when the literal rule falls short. The mischief rule addresses the issue that the legislation aims to resolve, while the golden rule allows judges to interpret the statute's meaning to avoid absurdity or ambiguity. These rules provide judges with a framework to interpret statutes and ensure their effective application.
In conclusion, while judges in the UK do not create laws, they play an essential role in interpreting statutes. Through statutory interpretation, judges clarify the meaning of legislation, fill in gaps, and ensure its practical application in specific cases. This process involves analysing the language of the statute, considering its context, and applying interpretative rules to determine how it should be enforced. By interpreting statutes, judges provide clarity and ensure the law's effectiveness in various situations.
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Judges declare law
In the UK, judges are responsible for interpreting and applying the laws enacted by Parliament. They must follow the precedent set by higher courts and ensure that the laws are upheld and applied fairly and consistently. However, judges also have the power to interpret statutes and create precedents that can shape the law.
While judges are not supposed to create law, there are areas where they do exert law-making power. For example, in the case of DPP v Jones (1999), the House of Lords interpreted a statute on highway use to include reasonable purposes beyond walking and passing, demonstrating the flexibility of judicial interpretation. Judges can also overrule previous cases, as seen in R v Dica (2004), where the Court of Appeal overruled R v Clarence (1888) to impose criminal liability for infecting someone with HIV, despite the Home Office's contrary view.
Judges can also declare laws incompatible with human rights, as empowered by the Human Rights Act 1998. This allows them to effectively overrule legislation, though it only requires Parliament to consider amending the law and leaves the ultimate decision with Parliament. Nonetheless, this power has raised questions about the legitimacy of unelected judges overturning laws set by elected representatives.
The concern about judicial law-making is heightened by the lack of democratic accountability of judges. Unlike elected politicians, judges are not directly accountable to the community, and their law-making role can be seen as undemocratic. The declaratory theory of law, widely accepted for a long time, argues that judges merely declare the law, not create it. However, this theory has been criticised, notably by Jeremy Bentham, who likened it to a man making laws for his dog.
In conclusion, while judges in the UK primarily interpret and apply the law, they do have the power to shape and create law in certain areas. This power of judicial law-making raises important questions about fairness, legitimacy, and the role of judges in a democratic society.
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Judges and political perception
The role of judges in the UK is to uphold the laws made by Parliament and interpret them in accordance with the cases they preside over. Judges are not democratically elected and are not accountable to Parliament for their decisions in particular cases. However, their decisions can be discussed in Parliament, and the latter may choose to reverse the effect of a decision or change the law as established or interpreted by a judicial decision.
The perception of judges as being politically neutral is important to maintain the public's trust in their impartiality and independence. Judges are generally careful about what they say in public, especially when appearing before Parliamentary Committees, to avoid being perceived as another 'player' in the political process. However, they may be invited to give evidence to such committees, and in modern times, judges have done so voluntarily.
The Constitutional Reform Act of 2005 has increased the separation of the judiciary from the other branches of the state, further emphasising the need for judges to be cautious about their public comments. Judges must be mindful of the potential impact of their statements, especially when they might have to adjudicate on the same issue at a later date.
While judges traditionally saw themselves as declaring or interpreting the law rather than creating it, there are several areas where they do influence law-making. For instance, in the absence of express law, judges may have to interpret statutes to apply them to specific cases. In some instances, judges have overruled previous decisions or made new laws, which has led to political instability and fundamental changes, such as the break-up of the UK constitution with the European Court of Justice.
In conclusion, while judges in the UK are not directly involved in law-making, they play a crucial role in interpreting and applying the law. Their decisions can have political implications, and they must carefully navigate the perception of being politically neutral to maintain public trust in their independence and impartiality.
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Judges overruling legislation
In the UK, judges have traditionally seen themselves as declaring or interpreting the law, rather than creating it. The role of creating law is generally seen as the prerogative of Parliament, which has the power to make or end any law under the UK's doctrine of parliamentary sovereignty.
However, there are several instances where judges have clearly made or overruled law. For example, in R v Dica (2004), the Court of Appeal overruled an earlier case, R v Clarence (1888), and held that criminal liability could be imposed on a defendant for infecting another person with HIV. This change in the law was made despite the Home Office's earlier decision that such legislation should not be introduced.
Another example is the case of DPP v Jones (1999), which concerned a demonstration on the road near Stonehenge. The House of Lords interpreted the rule that the public has the right to use the highway for reasonable purposes to include demonstrating and picketing.
The only court that can overrule itself is the Supreme Court (previously the House of Lords). The Supreme Court cannot overrule British law passed by Parliament but must interpret domestic law consistently with EU law and give effect to the rights contained in the European Convention on Human Rights. This has led to confusion and debate about the extent of the Supreme Court's powers in relation to Parliament.
In summary, while judges primarily interpret and apply the law, there are instances where they have clearly made or overruled law, particularly in areas where there is no statute law or where they are interpreting higher court decisions.
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Judges and the European Court of Justice
The European Court of Justice (ECJ), officially the Court of Justice (Cour de Justice in French), is the supreme court of the European Union (EU) in matters of EU law. It is composed of one judge per member state, currently 27, although cases are normally heard by panels of three, five or fifteen judges. The ECJ is based in Luxembourg and has been led by President Koen Lenaerts since 2015.
The ECJ's role is to interpret EU law and ensure its uniform application across all member states. It is the highest court of the EU in matters of Union law, but not national law. National courts cannot appeal against decisions of national courts in the ECJ, but they can refer questions of EU law to the ECJ for clarification.
The ECJ deals with requests for preliminary rulings from national courts, certain actions for annulment, and appeals. It ensures that EU law is interpreted and applied the same way in every EU country and that countries and EU institutions abide by EU law. The court acts as a collegial body, with decisions being those of the court rather than individual judges.
The ECJ has broad jurisdiction to hear various types of actions, including ruling on applications for annulment, taking action against member states for failing to fulfil obligations, and hearing references for preliminary rulings and appeals against decisions of the General Court. The General Court rules on actions for annulment brought by individuals, companies, and sometimes EU governments. It deals mainly with competition law, state aid, trade, agriculture, and trademarks.
Some examples of cases heard by the ECJ include Belgium v. Spain on a Spanish regulation regarding the bottling of wine, Spain v. United Kingdom on Commonwealth voting rights in Gibraltar, and Hungary v. Slovakia on the denial of entry to the Hungarian president.
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Frequently asked questions
Judges uphold the laws made by Parliament, but they can interpret and apply the law to specific cases. Judges can also make law when there is no statute law, and they can overrule legislation if it is incompatible with the Human Rights Act 1998.
Judges are not accountable to Parliament for their decisions in particular cases. However, they can be perceived as 'overruling' legislation if they declare a particular law incompatible with the Human Rights Act 1998.
The declaratory theory of law states that judges do not make the law, they only declare what everybody knows the law to be. This theory has been criticised by legal philosophers such as Jeremy Bentham, who compared the common law to "a man making laws for his dog".
Judges must be careful when changing decisions or making law, as this can lead to political instability. For example, in R v Dica (2004), the Court of Appeal overruled an earlier case, R v Clarence (1888), and held that criminal liability could be imposed on a defendant for infecting another person with HIV, despite the Home Office's earlier decision that such legislation should not be introduced.
If judges make up legal rules after someone has already done something, it seems unfair as that person could not have complied with a rule that did not exist at the time. Judges are also not democratically accountable, as they are unelected.
