The process on how judges should interpret statutes is not an easy one. There are various theories on this subject. Parliamentary draftsmen, who write in precise and technical language, will originally have written the legislation. But non-experts may amend the legislation during its passage through Parliament and circumstances may be encountered which were not considered by the draftsmen. The three main rules, which are used by the judges in interpreting Acts of Parliament:
- The literal rule – interpret the statute literally, according to its ordinary plain meaning. An example of this rule can be found in the case, Fisher v Bell [1960] 3 All ER 731
- The golden rule – if the literal interpretation leads to an absurdity, then modify the interpretation to a less obvious meaning. An absurdity may arise from a literal meaning of the words, alternatively it may arise from the policy implications of a literal interpretation.
- The mischief rule – defines the problem the act was meant to remedy and chooses the interpretation which bests deals with the problem. We can see an example of this in the case, Smith v Hughes (1871) LR 6 QB 597. In order to determine what was the problem before the Act, the courts can look at reports from the Law Commissions and also Hansard.
It is said that in the United Kingdom, Parliament is the ‘supreme lawmaker’. A.V. Dicey, writing about the doctrine of parliamentary supremacy, suggested that it contains three elements. The first is that Parliament can make and repeal any law whatsoever. Secondly, any other body cannot challenge laws made by Parliament. It is the role of the judges to apply and to interpret the laws made by Parliament, but they accept that they must obey those laws even if they conflict with rules established in previous cases. In Lee v Bude and Torrington Railway (1871) it was said: ‘If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but so long as it exists as law, the courts are bound to enforce it’. Later in Pickin v British Railways Board (1974) the House of Lords rejected an attempt to question the validity of an Act of Parliament on the ground that it had been prompted through fraud. Lord Reid said: ‘The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground whatsoever must seem strange and startling to anyone with any knowledge of the history and law of the constitution’. Compare this with the situation in the United States of America where the American Constitution gives the Supreme Court the right to declare legislation ‘unconstitutional’. The English courts do have some control over delegated legislation but even this is limited in scope. Dicey’s third element in his analysis of the supremacy of Parliament is that no Parliament can tie the hands of its successors, either as to the form of subsequent legislation or as to the procedure adopted to make law.
The process of getting a bill through Parliament is a fairly lengthy and complex one. It can take months to complete - and usually does – but the system can be speeded up if it is deemed necessary. Parliament, consisting of the House of Commons, the House of Lords and the Monarch, all must (usually) assent to a bill before it can pass on to the statute book. Under the Parliament acts 1911 and 1949, an exception exists in the case of a money Bill (any measure to do with raising taxes) which can become law without the assent of the House of Lords. The final stage in the passage of a Bill through Parliament, presentation for the Royal Assent, is in fact now a formality only. No British monarch since Queen Anne in 1707 has vetoed a Bill, which has passed through the houses of Parliament.
Nowadays, legislation usually emanates from government policy. Of course there are political, social and economic pressures on government which influence the legislative programme and, in addition, there are powerful pressure groups which use a range of methods to persuade government that certain laws should be introduced or changed. Thus most of the legislation which Parliament deals with reflects government policy.
More than any other issue, Europe is the biggest threat to the supremacy of parliament and the application of the national legal system. When Parliament passed the European Communities Act in 1972 it enabled it to become a member of the European Economic Community (as it was known then). In doing so it incorporated the European treaties into United Kingdom law and agreed to accept the law made by the institutions of the EEC. This momentous step has had an increasingly telling impact on the law of the United Kingdom. The Treaty of Rome created a ‘common market’ and as such its first objective was to eliminate barriers to trade between members. The early years of the common market were concerned with primarily with economic matters. But there is a strong relationship between economic and political matters, and the economic intentions of the EC inevitably had political consequences – for example in the establishment of the political and legal institutions of the EC and the movement towards harmonisation of certain areas of the law.
Hence, there is a conflict between supremacy of community law and parliamentary sovereignty. In this instance parliamentary sovereignty is just a theory, in effect it is not really valid, as it is not being upheld. Britain cannot retain their own sovereignty in the face of almighty pressure from Europe. In theory all they have retained is an opt out clause. The ECJ justifies its supremacy in three ways: by saying there is a need for harmonisation and uniformity, article 5 of the treaty is a duty of loyalty, which the member states have all signed, and Member states had freely transferred their national sovereignty in those areas designated by the treaty, namely economics and law.
The conflict between EC law and national law is one of the most controversial aspects of Britain’s entry into the community and of the progress towards political union. The extent to which EC law takes precedence over national law has also given cause for concern. Two important issues need to be considered here – first, the extent to which EC laws confers rights on individuals, and second, the question of the priority between European law and national law.
As yet the courts have made no express statement on how the conflict between the doctrines of parliamentary sovereignty and European supremacy can be resolved. Whilst a number of cases have provided views, expressed as obiter dicta, on what they might do in the case of an intention on the part of Parliament to legislate in conflict with the community, it has not yet arisen in reality (as seen in the judgements of Lord Denning in Macarthys [1979] ICR 785 and Lord Diplock in Garland ([1983] 2 AC 751)). The best statement to date on this topic comes from the case of Factortame ([1991] 1 AC 603 at 645). In this case Lord Bridge commented on the view that the earlier decisions in favour of Community were an attack on Parliamentary sovereignty. He considered that if the supremacy of Community law over the national law of Member States was not always inherent in the EEC Treaty, it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. He thus considered that the limitation of its sovereignty which Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. He concluded that, under the terms of the 1972 Act, it has always been clear that it was the duty of a United Kingdom court to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. According supremacy to Community law in those areas to which they apply was therefore nothing new. National courts must not be inhabited by rules of national law from granting interim relief in appropriate cases because it is no more than a logical recognition of supremacy.
A large proportion of English law is in reality made by the judges. The adhesion by our judges to precedent, that is, their habit of deciding one case in accordance with the principle, or supposed principle, which governed a former case, leads inevitably to the gradual formation by the courts of fixed rules for decision, which are in effect laws. This judicial legislation might appear, at first sight, inconsistent with the supremacy of Parliament. But this is not so. English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges. Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament.
Most people would recognise the legitimacy of laws passed by Parliament, since Parliament includes our elected representatives, answerable to the electorate. But what about judges? There has been a good deal of academic argument about whether judges make new law or simply declare what the law is. It is generally recognised today that judges do make new law when resolving disputes, although judges themselves may disagree about the extent of their law-making powers.
In conclusion, to say that it is a myth that judges do not make law is true to a certain extent. The role of the judge in the law making process has deteriorated in the last century. This is largely due to the fact that Parliament of the day has taken it upon itself to use the functions of the law to its own advantage. There has been a trend in recent years for the government of the day to create laws which will suit its policies. For example, the recall of parliament after times of national tragedy (e.g. Omagh bomb) so that the government can implement legislation to appease public opinion and satisfy the problems of the day. In instances such as these, the role of Judges is vital as legislation can often be hurried through parliament and ill planned. The ability of a Judge to carefully take time to think through the full gravity of the law in which they make is a substantial power. Britain’s entry into the EC has weakened judges’ powers also. The House of Lords has ceased to be the highest appeal court that a citizen of the United Kingdom can reach. Previously, judgements reached in the upper house were the final phase of a long judicial process. The Law Lords had an enormous responsibility, in some cases, to attempt to put right the mistakes of lower courts and o attempt to redress the balance of many wrong decisions. Now the European Court of Justice has usurped their role as the court of last instance, removing UK judges from the top of the court hierarchy. To the House of Lords, and Judges in the UK this is a damning blow as UK citizens can now question the judgements reached in the Lords and attempt to have those judgements over-turned. Cases such as Factortame v Secretary of State for Transport, where the Merchant Shipping Act was called into question, and Marshall v Southampton & SWAHA, where mandatory retirement ages were declared not to be in the spirit of the treaty, have shown that the sphere of influence that Judges in the UK previously worked in has now become smaller. They have ceased to be the biggest fish in a small pond and are now small fish in a very large pond. Undoubtedly, the powers of judges to make laws have certainly lessened, but the statement that Judge made law is now a myth is not completely true. Certainly it is a declining power, but it is still very real.
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Introduction to Law – Law 116J1
Essay Title: “It is a myth that judges in the United Kingdom do not make law.” Discuss.
Dr. Venkat Iyer
