Legislative Pique: A New Constitutional Convention?

Parliament can overturn judgments made by judges. Anyone familiar with the UK constitution could tell you this.

Indeed, every time Parliament legislates in an area previously governed solely by common law, it is either scrapping or modifying judge-made law. The modern democratic, administrative, and regulatory state is to a great extent a statutory creature.

Democracy demands that the legislature can act in this way. In a state with a codified constitution, such as Ireland, the people can overturn or modify in referendums the decisions of judges regarding the interpretation of the Constitution. The interpretation of statutes and the common law can be undone by the legislature. In the UK, only the latter is applicable. Were this not the case, we would live in a state ruled by judges. I consider that to be a bad thing — why it would be a bad thing is properly the subject of a separate blog.

Nonetheless, I am troubled by the proposal in the press to use annual ‘Interpretation Bills’ to undo judgments from that year.

It seems to me that we can identify at least two ‘categories’ of instances where Parliament undoes the work of a judge:

1. Where Parliament is legislating for an area of policy.

One example of this is the Law Reform (Contributory Negligence) Act 1945. This modified the common law rule whereby contributory negligence was an absolute defence to a claim in negligence. The 1945 Act made contributory negligence a partial defence, which may be reflected in the reduction of damages awarded to the wronged party.

In such cases, the statute is typically developed through a process of consultation and gestation. The statute is the manifestation in law of policy. Where judges are overruled, it is not because the Government disliked losing per se, but because it is necessary for enactment of Parliament’s preferred statutory scheme. The proposed change is rooted in its particular area of policy.

2. Where Parliament considers a particular judgment to be worthy of change on an ad hoc basis.

Examples include: the Burmah Oil (1965) case, a fixture of ‘Rule of Law’ units in undergraduate law courses, overturned by the War Damage Act 1965; Taff…