The system of precedent is based on a doctrine of stare decisis which means to ‘stand by what has been decided and do not unsettle the established’. The system of precedent refers to the source of law where past decisions of the judges create law for future cases to follow. This includes the judicial hierarchy, Act of Parliament and the Practice Statement. This paper will go further on whether the powers judges’ hold are justified. By analysing these points, this essay will show that whilst judges do have legislative power, such powers are strictly restricted. It is only under exceptional circumstances that judges utilise their legislative powers to make decisions.
The hierarchy of courts in the UK shows that judges are bound to follow any decision made by a court above in the hierarchy. The Supreme Court is the highest court in UK and decisions made by them are binding on all the lower courts. However, there are some exceptions in some courts.
In the Court of Appeal(CoA), decisions made by one of the division does not bind the other decision. This rule was established in Young v Bristol Aeroplane Co Ltd, along with three other exceptions. The first exception is that where there are conflicting decisions, the court can choose which one it will follow and which it will reject. The second exception is that where there is a decision of the House of Lords which effectively overrules a CoA decision, the CoA must follow the decision of the House of Lords. In Davis v Johnson, the CoA refused to follow a decision made only days earlier. This shows that judges do have some power to refuse a previous decision. However, the case went to the House of Lords, which ruled that the CoA had to follow its own previous decisions. Hence, the power judges’ have are being kept in check by higher courts. The third exception is where the decision was made per incuriam. In Rickards v Rickards, the court refused to follow a case it had decided in 1981. The previous case had misunderstood the effect of a HOL decision and hence the CoA did not follow its own previous decision. Furthermore, judges do not follow past precedents only in unique circumstances and hence do not abuse their power to make law. This was stated by Lord Donaldson in the judgment where it would only be in ‘rare and exceptional cases that the CoA would be justified in refusing to follow a previous decision’. As a result, judges do not abuse their power in overturning past decisions as they only do so when a previous decision was made in error.
The criminal division takes a more flexible approach to follow previous decisions as people’s liberty is involved. This is seen in R v Taylor, where the court held that in ‘questions involving the liberty’ a court must consider that ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. As such, judges do not simply depart from an authority and only do so when necessary.
Other courts from the high court to magistrate courts have little judicial law-making powers and generally follow the upper courts. This is called ‘vertical precedents’. This shows that the hierarchy of courts serves to limit a judge’s power to make law through their judgements, establishing certainty in law. In the absence of an Act of Parliament, judgements of higher courts generally determine the law. However, if courts do not like an existing decision or because of an unjust result, they may attempt to distinguish the case to avoid following precedent. In Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation, the judges arrived to their decision using reasoning by analogy. This is when there are no past cases for the judge to base his decision, he is likely to look at cases which are closest in principle and decide using similar rules. Furthermore, William Blackstone states that ‘judges do not create law, they merely declare what it has always been.’ In the case Willis and Co v Baddeley, Lord Esher MR shares the same view stating that “This is not a case…called judge-made law….for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not been authoritatively laid down that such law is applicable”. Hence, judges do not actually make law but interpret a case on existing facts.
However, academics might find this undemocratic, as judges are not directly elected. Judges are given powers to interpret and apply the law, by using statutory interpretation and judicial review. Jeremy Waldron highlighted that the apparent incongruity of a democracy giving a small group of unelected judges the last word on matters which concern citizens and legislators is undemocratic. However, in the case A(FC) v Secretary of State, Lord Bingham states that “It is of course true that the judges…are not elected and are not answerable to Parliament…but the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” This shows that the powers used by judges to interpret law is justified as that is their role in the judicial branch. Furthermore, judges usually leave it in the hands of Parliament if there are no precedents or a set of principles to follow.
Act of Parliament Precedents are subordinate to statute law. This means that if an Act of Parliament is passed and contained a provision which contradicts a previously decided case, that decision will cease to have effect. In President of India v La Pintada Compania Navigacion SA, Lord Brandon states that judges would not make law if Parliament does not support the decision made by the judge. Hence, judges could not override an Act of Parliament due to parliamentary sovereignty, which shows that judges do not have the power to make any kind of law which is not supported by the Parliament. Furthermore, Acts of Parliament are far more superior and cannot be overruled by others. This is seen in British Railways Board v Pickin, where the court was not entitled to go behind an Act once it has been passed. Furthermore in McLoughlin v O’Brian, Lord Scarman states that ‘it is not for the courts but for the legislature to set limits … to the law’s development’. As such, judges power’s are kept in check, and respect the decision of Parliament.
The Practice Statement was issued by Lord Chancellor in 1966, as it was realised that the final court of appeal should have more flexibility, which improvise the rule in London Street Tramways v London Country Council, where the HOL was previously bound by its own decision. The Practice Statement states that ‘it provides … some degree of certainty … to depart from a previous decision when it appears right to do so.’ This allowed the House of Lords to change the law when an earlier case was wrongly decided. Therefore, there would be more flexibility, which involves giving more power to judges to make law. In Herrington v British Railways Board, the court decided not to follow the previous decision in Addie v Dumbreck due to a change in social and physical conditions. This is also seen in R v R, where the law was clear that it was legal for a husband to rape his wife. The court held that the precedent did not reflect acceptable behaviour in light of societal changes, and it was the court’s duty to take further steps to alter the rule if it can legitimately do so in light of any relevant Parliamentary enactment.
However, the fact that a previous decision is wrong is not enough to justify overruling it. In Knuller v DPP, the court state that ‘In the general interest of certainty in the law we must be sure that there is some very good reason’. As such, factors such as legal certainty might outweigh the possibility of overruling a previous decision. This shows that judges’ powers are kept in check with other factors, and that a judicial decision could not solely overrule a previous decision. As such, in the case R v Caldwell, the court overruled an established precedent regarding the standard to establish recklessness. HOL criticised the decision in Caldwell stating that the ‘surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world.’ This shows that despite the obvious need to change the law, the decisions were made after consultation and expert opinions. This indicates that such decisions are often well supported and made on authority and hence justifying their decision to change the law.
Whether judges have too much power
As seen above, judges have the power to overrule a decision. Critics claim that overruling precedent is an abuse of judicial powers, one that leads to uncertainty. The issue with this is that whether it should have been left to the Parliament to legislate as opposed to judges departing from precedent. This concern is shared by many stating that the judiciary is merely a technical competence and is there to apply rules that legislation has made. Lord Simmons supports the view that ‘the first duty, which is to administer justice according to law, the law which is established for us by Act of Parliament or the binding authority of precedent. He believed that the courts should apply old principles to new circumstances and that it was the Parliament’s role to reform those principles. The ability of the judges to depart from precedent at will leads to claims that the judges have too much power. However, Parliament does not appreciate the need for law reforms, with its main focus surround political debates and battle for office. Furthermore, it would also be impossible for Parliament to have time or the ability to debate all issues regarding legislation in all areas, especially for cases with little significance on the population as a whole. Hence, if every type of issue requires the Parliament’s attention, the law may remain stagnant. As such, Lord Nicholls states that the common law is a living instrument which is reactive to change, to provide the country with a ‘system of practical justice relevant to the times of in which they live’. This was further supported by the reasoning in National Westminster Bank v Spectrum Plus, where ‘the common law would be the same in which they live’f the common law is rigid. Hence, judges do have a legitimate role with creating law with the support of the Parliament.
The powers accorded to judges cannot be said to be too much as their powers are justified with good reasons. It is vital that the law progresses with the social changes and judges are given the power to do so, with consent by the Parliament. These powers are also restricted by the Parliament as the Parliament can pass a legislation to overrule a decision.
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