The doctrine of binding precedent, or stare decisis is regarded as being fundamental to the proper exercise of the common law legal system (Huxley-Binns, 2017; p36). The concept of the ratio decendi, or in other words, the fundamental principle or rule upon which any judicial decision is made (Wilson and others, 2016; p149) being binding on courts lower than the Court in which the decision is made has been stated to be one of the main distinguishing features of the English legal system itself (Huxley-Binns, 2017; p36). There is however potential concern that this system is one which “allows judges to make law” and that this in turn undermines the principle of Parliamentary sovereignty.
The most often applied definition of parliamentary sovereignty come from Dicey, who stated ‘the principle of parliamentary sovereignty means… the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’ A.V Dicey
The United Kingdom’s constitution is regarded as an “unwritten” one and whilst there is not a written source which has a comprehensive list of what the constitutional rules of the State are there are accepted constitutional principles that operate by convention and which underpin the UK’s constitutional settlement (Webley and Samuels, 2015; p55). Under this constitutional settlement Parliament is regarded as the sovereign branch of state and is able to make or unmake any law it wishes (Martin, 2014; p41). Under this system the Courts are subordinate to Parliament, and as such are not entitled to challenge an Act of Parliament that has been approved by both Houses and which has received Royal Assent, as was stated emphatically in the following case of Edinburgh & Dalkeith Railway v Wauchope (1842) 8 ER 279, and this is so even if the legislation was passed as the result of some fraud such as was the case with regards a Private Act in the case of British Railways Board v Pickin 1974 AC 765. This is the accepted constitutional state because the principle of Parliamentary sovereignty allows for the democratically elected branch of State in the form of Parliament to be the supreme branch of the State, as opposed to the unelected judiciary in the form of the Courts, or the executive in the form of the Prime Minister and Ministers of State. It is therefore submitted that this constitutional settlement better allows for democratic governance and safeguards the electorate against the potential tyranny of the State because Parliamentarians are able to be removed from their seat of power by popular vote at elections.
According to this constitutional position, it is regarded that it is the job of Parliament to make law, whilst it is the job of the Courts to interpret and apply this law (Elliott and Quinn, 2016; p43). This is done through the passing of Statutes through both the House of Commons and House of Lords before Royal Assent is given by the Monarch (Elliott and Quinn, 2016; p49).
The Common Law and Binding Precedent
Acts of Parliament are however, by their very nature often instruments of compromise and debate. Acts require several readings and significant Parliamentary scrutiny before they are approved by both Houses. Acts are drafted by draftsmen and women who are subject to the constraints of these requirements by human error this often results in some aspects of the new piece of legislation being regarded as being in some way unclear (Elliott and Quinn, 2016; p54). To this end, the role of the Courts under the UK’s constitution is regarded to be to interpret and to apply this legislation. Statutory interpretation occurs as the Courts attempt to interpret the wording of the Act therefore the Courts attempt to do this in such a manner as to give effect to the intention of Parliament, it can be suggested that such an attempt is always in some way likely to be subjective and based largely on the opinions, values, or points of view of the judge who is carrying out the exercise in interpretation. As such, there are certain rules of statutory interpretation that the Courts have developed as part of the Common law which guides how statute is to be interpreted and it is important that these are followed through. In the first place, Courts will always try and interpret the legislation in a way which gives effect to the literal wording of the statute (Wilson and others, 2016; p110). This is not always possible however, so other forms of interpretation such as the golden rule (Grey v Pearson (1857) 6 HL Cas 61), or mischief rule are employed (Heydon’s Case (1584) 3 Co Rep 7a 7b). The case of Pepper v Hart (Inspector of Taxes) 1993 AC 593, the House of Lords allowed the use of Hansard Parliamentary reports as an extrinsic aid to this interpretative exercise in certain circumstances.
These rules of interpretation and the decision to allow the use of Hansard in the interpretation of Statute however were not created or allowed by any constitutional rule or Act of Parliament. Instead, these can be seen as examples in action of the doctrine of binding precedent that is fundamental to the exercise and development of the common law. It is this which gives rise to the criticism in the question that the common law and the doctrine of precedent allow judges to “make law”.
Do Judges “Make Law” and does this undermine Parliamentary Sovereignty?
Historically, the main source of law in the United Kingdom was in the form of so called “judge made law” through the Common law (Elliott and Quinn, 2016; p60). It was then for this reason that some have suggested the rules of interpretation as set out above and as developed in cases such as Heydon’s Case were regarded as being acceptable in interpreting the relatively few Statutes that were passed by Parliament (ibid). In addition to this, Courts did arguably “make law” through the doctrine of precedent this indicates that as decisions were made by higher Courts were binding on the lower Courts according to the doctrine of binding precedent. However, in the 20th and 21st centuries the majority of law made in the UK was in the form of Statute law from either Westminster or from the UK’s membership of the European Union this was made through the European Communities Act 1972 (Elliott and Quinn, 2016; p110).
It cannot therefore be said that by making “law” through coming to a binding consensus on interpretation of Statutes Parliamentary sovereignty is somehow undermined. This is argued to be the case even with regards EU law, where the Courts are indeed entitled to apply EU law in place of domestic law as held in R v Secretary of State for Transport ex Parte Factortame 1990 UKHL 13, because Parliament retains the right to repeal the European Communities Act 1972 (R(Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5). Indeed, it can be said that Parliamentary sovereignty is retained because Parliament retains the right to introduce new legislation which repeals the common law through the doctrine of implied repeal (Barnett, 2017; p148).
Nevertheless Courts do retain an important role in interpreting Statute this is seen through examples such with the law relating to homicide. Homicide was originally a common law offence but was codified by the Homicide Act 1957 which merely repeated the Common Law formulation of what constituted murder (s1( 1) Homicide Act 1957). The Courts however had retained a role in interpreting what was meant by the need for the defendant to have “intended” to kill or cause serious bodily harm to the victim. This resulted in a definition in the case of R v Woolin 1999 AC 82, which establishes that someone intends to pursue an act when the consequence of their act is virtually a certain consequence of their act, and they appreciated that fact. Similarly, the law on joint unlawful enterprise is an area which is substantially one which has been developed through the Common law. The following law as set out in the case of Chan Wing-Siu v The Queen 1985 AC 168, was in 2016, regarded by the Supreme Court as having being interpreted wrongly in the landmark case of R v Jogee 2016 UKSC 8 this case resulted in a significant change to the law. This is an example of the Common law allowing for the development of law without recourse to Parliament having to pass an Act of Parliament and may be grounds for suggesting that it is indeed true that “judges make law”. Barnett refers to this system as a sharing of sovereignty or a bi-polar form of sovereignty (Barnett, 2017; p148).
Despite the suggestion that judges can make law through binding precedent, it is important to note that not all judges rule on in cases forms part of the “binding precedent” of a case. In any case, most of the judgment is regarded as obiter dicta and not binding (MacIntyre, 2016; p705). It is only the ratio decidendi which is specifically binding upon subordinate Courts (Barnett, 2017; p148). In addition, it is to be remembered that Parliament retains the right to change the Common law at any time through introducing legislation in the form of an Act of Parliament. Whilst this in turn may be interpreted by the Courts, the judiciary must do so according to the established rules of Statutory interpretation and in such a way that the intention of Parliament is given effect to (Elliott and Quinn, 2016; p60). It is submitted therefore that the development of the common law through binding precedent, although it is demonstrably capable of “making law”, does not pose a threat to Parliamentary sovereignty, this is retained through parliament as superior body to the subordinate courts.
Introduction The doctrine of binding precedent