Now you see it, now you...

Here is an interesting quote from Slapper & Kelly: “These considerations raise the question that if the law, as represented in either common law or statute law, is out of line with current social beliefs and practices, then should it not be incumbent upon the judiciary to decide cases in line with the currently prevailing standards, even if this means ignoring previous decisions and interpretations?” This cuts to the heart of two issues of fundamental importance in common law: whether or not courts create law and principle of stare decisis.

In the UK, the Parliament is said to be sovereign. Law making powers are given to this elected body. While Parliament can delegate the power to make laws, such power has not been given to the judiciary. Yet, various methods of interpretation devised by the judiciary and tacitly accepted by the legislature allow the court leeway in applying the law. Resistance from the legislature usually occurs when the court is seen as “filling in the gaps” which they believe exist in the law. The doctrine of stare decisis provides that once an authoritative court has interpreted the law, the other courts within the judiciary must interpret similar cases in a similar manner.

However, what is the practical effect when the court reverses itself? Until 1966 and the Practice Statement [1966] 3 All ER 77 issued by the Lord Chancellor, Lord Gardiner, the court did not. It was the responsibility of the legislature to correct what it believed were interpretative errors by the courts. Indeed, Parliament showed that it was willing to address not only interpretative errors but also judgments which it disagreed with by passing new laws which the court was then obliged to recognize and apply, even ones with retroactive effect (see Burmah Oil Co Ltd v The Lord Advocate (1965)). Do not the courts themselves take on such authority when they reverse long standing precedents? If it has long been held by the courts that doing X is not a crime and then in one new case before it the court decides that social beliefs and practices have moved so far from the established precedent that they suddenly decided that doing X is in fact a crime have they not created a new law? What’s worse does it not appear that such a law was created with retroactive effect? The defendant had relative security that his actions at the time were legal. However does not the reversal of precedent belay such a claim? At least when Parliament creates a new law it usually not apply retroactively, people may adjust their behavior but in this case the defendant is held liable for actions which were previously not prohibited by law.

Interesting argument in favor of truly binding precedent, perhaps next blog will take the opposing view….