Do Judges Make Laws?

Parliamentary sovereignty is the key stone in the British Constitution. If judges were to make law then they would be contradicting this doctrine. The legislative supremacy disqualifies the courts power to review the validity of legislation, refer to British Railway Board v Pickin . The objective of judges is to not make law but simply declare what the law had always been. Acts of Parliament are the highest form of authority and the courts hands are tied by it. But through the doctrine of precedent, the judicial function of declaring and applying the law has a ‘quasi-legislative effect’.
The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is no previous legal decision or law for the judge to use. This leads to judges technically making law through original precedent. The doctrine of Precedent is the process whereby judges of a lower court are bound to follow a decision on a point already made by a judge in a higher court. It is based on the maxim “stare decisis” which means stand by what has been decided. To satisfy the conditions in the doctrine, the previous point must have been the “Ratio decidendi” (reasons for deciding). The previous court must have been at a higher level than the present or at the same level. The rest of the decisions are “obiter dicta” (things said by the way) not strictly binding but merely persuasive. Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided, thus allowing judges to create new law.
The 1966 Practice Statement allows the House of Lord to ‘update’ the law, thus extending the power of the Law Lords to ‘create’ law. The court of Appeal is bound by their past decisions. This principle was laid down in the case of Young v Bristol Aeroplane Co. Ltd . There are 3 exceptions that allowed them to not obey their previous decisions.