This essay will explore the concept of judicial activism and its limits within the constitutional framework of the United Kingdom. It will begin by defining judicial activism and contrasting it with the traditional declaratory theory of law. The essay will then consider the constitutional principles of Parliamentary Sovereignty and the separation of powers, which form the primary arguments against an activist judiciary. It will examine how judges have historically developed the common law and how the Human Rights Act 1998 has influenced their role. Ultimately, this essay will argue that while judges in the UK do possess a creative function, their power is effectively limited by the overarching principle of Parliamentary Sovereignty, which ensures that the elected legislature remains the supreme source of law.
The Constitutional Argument Against Judicial Activism
The core of the British constitution is traditionally understood through the doctrines of the separation of powers and Parliamentary Sovereignty. These principles set out the argument for judicial restraint. The separation of powers, a concept often attributed to Montesquieu, suggests that the three branches of the state – the legislature, the executive, and the judiciary – should have distinct roles to prevent the over-concentration of power (Montesquieu, 1748). In this model, Parliament’s role is to make the law, the government’s role is to execute it, and the judiciary’s role is to interpret and apply it. Judicial activism, where judges appear to ‘make’ new law rather than merely interpret existing law, is seen as a breach of this separation, an encroachment upon Parliament’s legislative function.
This argument is strengthened by the principle of Parliamentary Sovereignty, famously articulated by A.V. Dicey. Dicey defined this principle as the ability of Parliament to make or unmake any law whatever, with no person or body having the right to override or set aside its legislation (Dicey, 1915). This doctrine places Parliament at the apex of the legal system. As judges are unelected and not directly accountable to the public, there is a ‘democratic deficit’ argument against them taking on a law-making role. It is argued that such significant decisions should be left to the elected representatives of the people in Parliament. From this perspective, the judicial role should be limited to the ‘declaratory theory’, where judges are seen as simply discovering and declaring the existing law (Blackstone, 1765). Any deviation from this is viewed as an illegitimate use of power. As Griffith argued, judges are not politically neutral, and their personal views can influence decisions, making it important to constrain their role strictly to one of interpretation (Griffith, 1997).
Judicial Law-Making in Practice
Despite the strength of these constitutional arguments, the declaratory theory is widely considered a ‘fairytale’ (Reid, 1972). In practice, judges have always played a creative role in shaping the law, particularly through the development of the common law. Landmark cases demonstrate this creative function. For example, in Donoghue v Stevenson [1932] AC 562, the House of Lords effectively created the modern law of negligence, establishing a general duty of care owed to one’s ‘neighbour’. This was not simply an interpretation of existing statutes but a significant development of legal principle to meet the needs of a changing society. Similarly, in R v R (Marital Rape) [1991] UKHL 12, the House of Lords abolished a centuries-old common law immunity that prevented a husband from being criminally liable for raping his wife. The court recognised that the concept was unacceptable in modern times, stating that “the common law is… capable of evolving in the light of changing social, economic and cultural developments”.
More recently, the Human Rights Act 1998 (HRA) has provided a statutory basis for a more active judicial role. Section 3 HRA requires courts to read and give effect to primary and subordinate legislation in a way which is compatible with the European Convention on Human Rights (ECHR) “so far as it is possible to do so”. This interpretative obligation can sometimes require courts to depart from the clear intention of Parliament. In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords used section 3 to interpret the Rent Act 1977 so that a same-sex partner could be considered the “spouse” of the deceased tenant for the purposes of succession. This involved reading words into the statute to achieve a Convention-compliant outcome, a step which Lord Steyn described as the appropriate course of action under the HRA. This demonstrates a form of activism, but it is one explicitly sanctioned and directed by Parliament itself through the HRA.
The Constitutional Limits on Judicial Power
While the judiciary is clearly more than just a ‘declarer’ of law, its power is not unlimited. The UK constitution contains significant checks and balances that prevent judicial activism from threatening the democratic order. The most fundamental limit is the very doctrine of Parliamentary Sovereignty that activists are accused of undermining. If a court makes a common law ruling or interprets a statute in a way that Parliament disagrees with, Parliament can simply pass a new Act of Parliament to reverse or clarify the law. The rule in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, where the House of Lords held that the government was liable to pay compensation for property destroyed during wartime, was swiftly reversed by the War Damage Act 1965, demonstrating Parliament’s ultimate power.
The HRA 1998, while increasing the judiciary’s interpretative powers, also contains its own built-in limit that respects Parliamentary Sovereignty. Where a court finds it impossible to interpret a piece of primary legislation in a way that is compatible with the ECHR, its only recourse is to issue a ‘declaration of incompatibility’ under section 4 HRA. Such a declaration does not invalidate the statute or affect its continued operation. It is a formal signal to Parliament that a law is in breach of human rights standards, but the power to amend the law remains with Parliament. This was deliberately designed to preserve the constitutional balance. In Bellinger v Bellinger [2003] UKHL 21, which concerned the legal recognition of a post-operative transsexual person for the purposes of marriage, the House of Lords issued a declaration of incompatibility, stating that the issue involved complex social and ethical questions better suited for Parliament to decide. This shows judicial deference to the legislature on matters of significant policy.
There have been suggestions from senior judges that Parliamentary Sovereignty may not be absolute. In R (Jackson) v Attorney General [2005] UKHL 56, Baroness Hale and Lord Steyn suggested in obiter dicta that if Parliament attempted to do something fundamentally unconstitutional, such as abolish judicial review, the courts might not be bound to enforce it. However, these remarks remain theoretical and highly controversial. The orthodox and prevailing view is that judges operate within a constitutional framework where Parliament is the ultimate authority.
Conclusion
In conclusion, the debate over judicial activism in the UK is a tension between the need for law to adapt and the democratic principle that law should be made by elected representatives. The traditional declaratory theory no longer provides a credible account of the judicial function, as judges clearly play a creative role in developing the common law and, under the HRA 1998, engaging in strong statutory interpretation. However, fears of a judiciary that is ‘out of control’ are largely misplaced. The limits on judicial activism are embedded deep within the UK’s constitutional structure. The ultimate power of Parliament to legislate in response to court decisions, and the carefully crafted mechanism of the declaration of incompatibility under the HRA, ensure that the judiciary remains subservient to the elected legislature. While judges can and do shape the law, they do so within clearly defined boundaries, with Parliamentary Sovereignty acting as the ultimate limit on their power in the UK’s constitutional democracy.
References
- Blackstone, W. (1765) Commentaries on the Laws of England.
- Bellinger v Bellinger [2003] UKHL 21.
- Burmah Oil Co Ltd v Lord Advocate [1965] AC 75.
- Dicey, A. V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. Macmillan.
- Donoghue v Stevenson [1932] AC 562.
- Ghaidan v Godin-Mendoza [2004] UKHL 30.
- Griffith, J. A. G. (1997) The Politics of the Judiciary. 5th edn. Fontana Press.
- Human Rights Act 1998.
- Montesquieu, C. de S. (1748) The Spirit of the Laws.
- R (Jackson) v Attorney General [2005] UKHL 56.
- R v R (Marital Rape) [1991] UKHL 12.
- Reid, Lord. (1972) ‘The Judge as Law Maker’, Journal of the Society of Public Teachers of Law, 12(1), pp. 22-29.
- War Damage Act 1965.
