This article was the 2nd Prize winner of the Lord Toulson Essay Prize in Law competition, written by upper-sixth former Tom Welsh.
Estimated read time: 6 minutes
‘How far, if at all, should the Supreme Court be bound by its own previous decisions on what the law is?’
In the UK the principle of ‘stare decisis’ is key to our legal system. As the birthplace of common law, huge weight is placed upon judgements as they form precedent which sets the future direction of the law. Precedent is also firmly rooted in our hierarchy of courts with the Supreme Court the only court to be capable of overturning it. This is vitally important to the development of the law because, as the final court of appeal, often it must decide whether to continue the existing tradition of law or to flag it as outdated and/or inequitable when applied to the case before them and change it. It should though be recognised that as the final court of appeal for Scotland, a country with a hybrid legal system, the Supreme Court must also occasionally consider points from civil law too.
From the turn of the 20th Century until 1966 the predecessor of the Supreme Court, the House of Lords, did not have the ability to overturn precedent it had previously set. However the Practice Statement was then issued in order to provide for the adaption of English law to meet changing social conditions. This was a broader aim of Harold Wilson’s government, shown also through their widespread liberal reforming legislation. In effect, they wished for both the statutory and case law to be brought in line with their ‘civilised society’ and the associated moral values.
The statement also served as a recognition of various competing aims within the law: predictability through simplicity; its proper development, and the desire for fair outcomes. Essentially admitting that it may not be possible to serve all three in every case it thus pithily struck at the heart of the difficulties the Supreme Court faces.
In the forty years following its introduction, the power to overturn previous precedent was used sparingly. The crucial dilemma being when was it to be deemed that the law was outdated and that the precedent needed changing. Many judges, with their tendency towards being cautious and conservative, would posit that this need for reform of the law must entirely outweigh the benefit of sticking to clearly defined principles. This does however lead to cases where the Supreme Court may believe an outcome to be unfair, but that the judgement should not be overturned due to the damaging effect on core principles of law.
Moving to the question of why overturning of precedent should be avoided. The law in its origins, exists in order to benefit those subject to it. In order to achieve this it must be clear to people what is and what is not legal.
This has obvious merits. A product of the modern legal system is that there are many definites in the eyes of the law. If one person kills another they are liable to be charged with and tried for murder. Even young children are aware that some actions have legal consequences. It is not just criminal law that this certainty applies to though. Within contract law there are rules and principles that can be taken for granted. In fact, it is entirely logical to suggest that the modern economy is predicated on the Rule of Law. Predictability of the law is of huge benefit to society. It must however be remembered though that the law only reached its current state incrementally over time; if we wish it to evolve further it must change to do so.
In addition, as new technology emerges the law must adapt. It often falls to case law to determine what the law will be in cases lacking relevant legislation. Looking strictly at past precedent, which by nature is based on past fact, would make this task hard to achieve.
Another benefit of precedent is its capability of minimising judicial tyranny. Humans lack moral and mental perfection and thus it is of benefit that modern judges must outline a ‘ratio decidendi’ for a decision; it prevents arbitrariness. Further there can be renegade judges who propose radical legal reform through judgements in line with their opinion rather than relevant prior precedent. For the Supreme Court to have a last say on things is crucial in preventing power being too centralised on individuals. Not in the least because it sits in larger panels of judges.
The many apparent benefits of precedent lead one to the conclusion that in the main it is a good thing. There must, in my view, exist a strong reason to change the legal precedent if it is to be done. The Supreme Court agrees, with the original wording of the Practice Statement suggesting that precedent should only be overturned ‘when it appears right to do so’.
One strong argument to be made in favour of overturning precedent is that the Supreme Court should be capable of rectifying its own recent mistakes. The law frequently assumes that the existing precedent is infallible, and whilst this seems more reasonable for long-standing principles that laid the foundations, recent decisions cannot be argued to be so. If the Supreme Court believes it made a mistake, it should be dealt with now before it plagues centuries of subsequent cases due to binding precedent.
Further, if the law is to work for the people it cannot exist in a vacuum. Opinions on human behaviour change, and social and cultural norms frequently expire. There exist many cases where miscarriages of justice occurred resulting from views we hold to be incompatible with modern life. A counterargument to be made is that moral questions belong in the realm of politics and its elected representatives and should not be addressed by case law but by legislation. This view is, in my opinion, too doggedly apologetic for previous custom to hold much weight. This is especially true since it is not the role of the Supreme Court but the Law Commission to actively review the state of the law and suggest improvement through legislation. The Supreme Court can only address an issue of law as and when a relevant case comes before it; as such it has a relatively low impact on the changing of controversial issues in the law.
There can also be seismic events that change the legal groundwork. For example, the long-established supremacy of EU law is soon to be abolished and consequently the Supreme Court will face cases were its previous rulings will be incompatible with the cases before it. The inflexibility of a final court of appeal being strictly bound by its own decisions would severely hamper that second aim of the law, namely its proper development.
In conclusion then, one could make a claim that the legal orthodoxy should always be maintained in order to safeguard the integrity of the principles of the common law. Under such a scenario the Supreme Court could, as it already does in certain situations, merely highlight areas of the law that the government should re-consider in legislation.
This, I believe, would be the wrong course of action though. Partially due to its castrating of the development of the common law but also due to the unintended consequences such as increased legislative slowdown and issues regarding statutory interpretation. Additionally, when counsel draft legal argument, the exception to precedent would become crucially important. What might happen upon the reinstatement of prior precedent from the Supreme Court being binding on itself is that the court would frequently find that the particulars of a given case are an exception to the rule of a precedent. This would lead to a state where, rather than consolidating and clarifying the principles underpinning the common law, there would exist an intricate web of exceptions to rules.
It is worth noting at this point that when the Supreme Court was founded from the House of Lords it adopted the Practice Statement because it believed the right to overturn its own precedent was essential to its ability to function as the court of final appeal.
Where I believe the fine line exists that balances the aims of the common law in perfect harmony is for the Supreme Court to be allowed to overturn its own previous precedent only when it believes it was previously incorrect to such an extent that: not only is it the wrong stance for the common law to take on an issue; but that it was, all importantly, unfair retrospectively and also unfair if it is applied to the case before the court. English law has always found ways to improve itself, often by recognising its own pitfalls and providing solutions; the emergence of equity for example. And just like the motive behind equity, the issue of a final court of appeal being able to overturn its own previous decisions on what the law is revolves upon avoiding unnecessary inflexibility. Law should be assessed by the ends it achieves, and clear and principled law, whilst elegant, is only good law to the extent that it leads to justice in the majority of cases, not solely by virtue of its nature.