THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENTS

THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT

As stated earlier, parliament is the supreme law-making authority.

Parliament can pass a law to override the common law made by the courts.

As parliament is the supreme law-making body in its jurisdiction, it may decide to incorporate common law principles within legislation. This process is known as ‘codification’.

Parliament may also abolish common law principles it disagrees with, and this is referred to as ‘abrogation’.

An example of abrogation, is the Trigwell Case.

THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT

Judges make law when deciding on a case for which there is no existing statute or common law.

The reason for the decision, or the ratio decidendi, is binding on lower courts in future cases.

In some circumstances, parliament may have failed to legislate on an issue due to the issue’s complexity or controversial nature.

Since courts are independent of the political process, they may be able to make laws that parliament finds difficult.

Courts thus have an important role of ‘filling the gaps’ left by parliament.

THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT

Parliament is the ultimate law-making body.

If parliament does not agree with a court’s interpretation of a statute, it can amend the legislation to overrule the court’s interpretation.

Although the courts cannot change a law made by parliament, the decision made by courts can influence a change in the law.

THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT

The courts are responsible for determining the day-to-day application of the law.

Courts will do this in two ways. First, if a case comes before the court, the court will look at statute law to determine what the law should be. In order to do this, the court will need to interpret or give meaning to the words used in Acts.

A court’s reason for deciding the meaning of words or phrases in a statute also forms a ratio decidendi. The decision of a court about the interpretations that should be applied to words or phrases in an Act of Parliament therefore becomes a precedent, which may be used for subsequent cases.

Then, the legislation and the precedent must be read together. In many instances, the court’s interpretation may result in the need for amendment to the Act in question.

READ ABORTION CASE- QUESTIONS

Pg 31 of Jules Book.

Read the article ‘Why has the law about abortion been so slow to develop?’ and answer the following questions.

1 Briefly summarise the law concerning abortion prior to 2008. How has this been affected by judicial decision? Why do you think parliament left it to the courts to decide when an abortion was unlawful?

2 ‘Making and interpreting laws on abortion have been notoriously difficult.’

a What do you think are the weaknesses of relying on court interpretations to determine when an abortion has been unlawful?

b If the community became dissatisfied with the way in which the courts have interpreted these laws, what action could be taken? What would be the effect?

3 It has been suggested that the independence of courts makes them the best lawmaker to deal with controversial and divisive issues such as abortion.

a What are the strengths of including the courts in the law-making process?

b Do you agree with the above statement? Why/why not?