When should judges make and unmake law? One simplistic and absolute view is that this is something that judges should never do, and that all lawmaking and unmaking should just be left to parliament. But this view indicates ignorance about our common law system, where laws as varied as the crime of murder and the civil laws of contract and negligence all have no ultimate basis in statute. They are judge-made laws.
A better view is that parliament is one source of law among others, but that it is “supreme” in that it can overrule other rule-makers. The judges may (to use the usual euphemism) “develop” the law, but parliament can and sometimes does step in to stop this. There are also specific and politically sensitive areas where the judges are inhibited from developing the law by reason of deference to parliament. And, since Brexit, no court can strike down primary legislation on any basis.
In practice, there is no consistent balance struck balance between parliament and judges—regardless of constitutional theory. Consider four concrete examples of where courts have assumed or refused the role of lawmaker and law-unmaker.
The first example is the old legal rule that a husband could not, at law, be guilty of raping his wife. The source of this law was not statute or even a judicial decision, but an 18th-century legal textbook. Over time, the courts devised certain exemptions from this rule in respect of those who were formally separated and so on. And in the 1991 case of R v R the then-highest court, the House of Lords, abolished the rule altogether.
The House of Lords was right to do so, yet parliament had acknowledged the existence of this horrible rule in primary legislation as recently as 1976. Given that, was the highest court not usurping the role of parliament? No sensible person can object to what the court did, but it does not fit with any neat legal theory.
The second example is how, in the 10 or so years before 2015, judges invented in a succession of cases an entirely new law of misuse of private information, even though the law lords had held in 2003 that there was no general law of privacy in England. The fiction was that this was a natural consequence of the Human Rights Act 1998, but that statute does not mention, still less create, a new legal basis for suing people for breaching privacy rights.
Many—though not all—people would say the courts were right to do this, and that parliament was unlikely to legislate to protect privacy rights as it would have upset the tabloid media. The development of the law here had the tacit consent of cowed members of parliament. It was only when the courts began making “super-injunctions”—where the existence of the court order itself was kept secret—that parliamentarians intervened.
The third example is about divorce law, where in the harsh 2018 case of Owens v Owens it was held that a wife could not get a divorce because the relevant statute required compelling evidence of unreasonable behaviour. She had provided evidence, but the courts held it was insufficient, and if there were to be no-fault divorces then it was for parliament to legislate. Fortunately, on this occasion parliament did intervene, and divorce law has been reformed accordingly (though the changes are not yet in force). But the courts could have avoided this callous justice for Mrs Owens by taking a liberal view on what constituted sufficient evidence. Instead, the judges appear to have used this hard case to send a political signal at her expense.
The fourth example is one where there has not been resolution one way or the other: the law of assisted suicide. This is a distinctive law, set out in statute, which says it is a crime to “assist” even though there is no primary offence, as suicide itself ceased to be a crime after 1961. It is also a law that not only creates hardship but unimaginable physical and mental pain, with people who are reliant on others needlessly dying in agony against their settled and rational preference to end their own life.
Parliament has continually refused to act on assisted suicide, and there seems no prospect of that changing. The courts could (and sometimes do) take a humane view of how far the current law can be pushed, but—unlike the rule in respect of marital rape—the courts cannot abolish the legal rule, as it is explicitly provided for by statute and not an ancient textbook. The courts keep saying this is a matter for parliament—but parliament keeps silent.
Although courts cannot vacate primary legislation, judges could do more to mitigate the harshness of this law if they wanted. Judges remain the custodians of how enacted provisions are constructed and how enacted words are interpreted. But unlike R v R and the development of privacy law, the courts do not want to go as far as they can. And so we have a gap which neither parliament nor the courts want to fill.
The fundamental problem here with the constitutional arrangements of England (if not the UK more generally) is not about who makes, changes and abolishes law. The problem is that there can be silence and inactivity where for various reasons the different elements of the state all refuse to promote, make or develop law to protect the fundamental rights of the individual. The problem is not what is being done, but what is not being done.
