Tracing The Evolution Of Stare Decisis In English Courts From The Mid 19th Century Onwards

Position prior to 1966: Rigid, inflexible adherence to precedents

Since years, the House of Lords had followed a very rigid adherence to the rule of precedents by holding that its previous decisions are as binding upon itself as they are on inferior courts. For the sake of certainty and consistency, the House debarred itself from ever reconsidering any of its previous decisions and held that the law declared by it can only be set right by an Act of Parliament.

A secret wedding leads to one of the earliest decisions on stare decisis, if not the earliest.

In 1861, in Beamish v. Beamish[1], a very interesting case arose before the House of Lords. Reverend Samuel Swayne Beamish was a priest. He wanted to marry one Isabella Frazer. As his father did not consent to the marriage, he persuaded her into a secret wedding. On November 27, 1831, Reverend Beamish performed a ceremony of marriage between himself and Isabella in Cork. Except for the bridegroom, no priest was present at the wedding. The question that arose was whether a marriage performed by a priest upon himself would be a valid marriage and whether the child of such marriage would be a legitimate child. The Court of the Queen’s Bench in Ireland held that the marriage was a valid marriage. This was affirmed by the Court of the Exchequer. The matter was thereafter brought to the House of Lords which reversed the decisions and held that to constitute a valid marriage, it must have been celebrated in the presence of a clergyman in holy orders other than the bridegroom himself. While doing so, it followed a previous decision of the House holding that a previous decision of the House is binding upon it and taken for law till altered by an Act of Parliament.

Lord Campbell, the Lord Chancellor said:

“But it is my duty to say that your Lordships are bound by this decision as much as if it had been pronounced nemine dissentiente, and that the rule of law which your Lordships lay down as the ground of your judgment, sitting judicially, as the last and supreme Court of Appeal for this empire, must be taken for law till altered by an Act of Parliament, agreed to by the Commons and the Crown, as well as by your Lordships. The law laid down as your ratio decidendi, being clearly binding on all inferior tribunals, and on all the rest of the Queen's subjects, if it were not considered as equally binding upon your Lordships, this House would be arrogating to itself the right of altering the law, and legislating by its own separate authority.”

Lord Cranworth said:

“…the decision of your Lordships' House in The Queen v. Millis must be taken as settled law. …..I do not think it necessary, however, to canvass or discuss the propriety of the decision at which the House then arrived. I assume, and am bound to assume, that case to have been correctly decided.”

Late, in 1874, in The Commissioners of Inland Revenue v. William Harrison[2], Lord Cairns, the Lord Chancellor said:

“My Lords, I cannot think that your Lordships will find yourselves at liberty on this occasion to enter into the question of what is the proper construction of the 38th section of the Succession Duty Act as if it were a question uncovered by authority which has now become conclusive. And, therefore, my Lords, I think it better to abstain, in the few words which I have to address to your Lordships, from any expression of my own opinion as to whether the decisions which have been already come to upon the meaning and effect of that section are satisfactory or unsatisfactory.

Your Lordships are now asked, in the face of those two cases, consistent with each other, and both proceeding upon a certain construction of the 38th section of the Succession Duty Act, to arrive at a decision which would be antagonistic to the decision of those cases, and which would put upon the 38th section a construction different from the construction which this House assigned to that section in those two decisions. Now, my Lords, I think that a course of proceeding of that kind is one which your Lordships never have adopted. It appears to me that it would be a most dangerous course for this House to adopt; and if it could be more dangerous in one case than in another, it would be so in a case in which your Lordships are dealing with one of the fiscal
Acts of the country, as to which the object must be, above that of all other Acts, to maintain them and to expound them in a manner which will be consistent, and which will enable the subjects of this country to know what exactly is the amount of charge and burden which they are to sustain. I think that with regard to statutes of that kind, above all others, it is desirable, not so much that the principle of the decision should be capable at all times of justification, as that the law should be settled, and should, when once settled, be maintained without any danger of vacillation or uncertainty.”

London Street Tramways firmly establishes the rule just before the turn of the century.

In 1898, in London Street Tramways Company Limited v. London County Council[3], the House of Lords firmly declared a rigid rule of adherence to precedents by holding that it was a principle established since centuries that once a decision is delivered by the House upon a point of law, it cannot be reversed. The judgment was delivered by the Earl of Halsbury, Lord Chancellor and concurred upon by the other Law Lords. Relevant portions are reproduced below:

“….that a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided.”

…. Of course I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice as compared with the inconvenience — the disastrous inconvenience — of having each question subject to being reargued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final Court of Appeal? My Lords, “interest rei publicæ” that there should be “finis litium” at some time, and there could be no “finis litium” if it were possible to suggest in each case that it might be reargued, because it is “not an ordinary case,” whatever that may mean. Under these circumstances I am of opinion that we ought not to allow this question to be reargued.…..

Under these circumstances it appears to me that your Lordships would do well to act upon that which has been universally assumed in the profession, so far as I know, to be the principle, namely, that a decision of this House upon a question of law is conclusive, and that nothing but an Act of Parliament can set right that which is alleged to be wrong in a judgment of this House.”

In 1939, in Radcliffe v. Ribble Motor Services Ltd.[4], Lord Wright reiterated the principle:

“…It is indeed true that the common law is flexible and progressive, but it is so only subject to definite limitations. One is that this House is bound by its own decisions. ……”

The House’s rigid adherence to precedent was criticised from time to time both within the House and outside. In 1952, in Nash v. Tamplin & Sons Ltd.[5] Lord Reid while affirming the rule criticised it and in 1962, in Scruttons Limited v. Midland Silicones Limited[6] Lord Reid called it ‘too rigid’.

July 26, 1966 – The House of Lords announces a change.

On July 26, 1966, the House of Lords shunned its rigid adherence to the doctrine. The House did so not by overruling London Tramways (supra) and other judgments which established the rule, not on the basis of an Act of Parliament modifying the practice but by an announcement made by the Lord Chancellor! The announcement was contained in a ‘Practice Statement’. The Practice Statement (Judicial Precedent)[7] is reproduced below:

“Before judgments were given in the House of Lords Lord Gardiner L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:

LORD GARDINER L.C.: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

By this statement, the House provided that it may depart from a previous decision “when it appears right to do so”. However, while doing so, the House also stressed on the importance of adhering to former decisions by providing that “the use of precedent as an indispensable foundation… provides at least some degree of certainty..” and by explicitly providing that former decisions be treated as “normally binding”. Therefore, by this practice statement, the House struck a balance between an inflexible adherence to stare decisis on one hand and on the other, the need to allow the law to evolve and to correct erroneous decisions.

The House added that it “will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements ……have been entered” implying thereby that the House, if it wants to overrule a decision, may consider exercising the option of ‘prospective overruling’ in order to not affect things already done.

The mode adopted by the House for modifying its practice

What is interesting is that the House of Lords modified its age-old practice of strictly adhering to precedents not by overruling judicial precedents which had established the rule, not on the basis of an Act of Parliament modifying the practice but by the Lord Chancellor simply making an announcement by way of a Practice Circular. A question does arise whether the House could have modified its practice and effectively overturned the law laid down by its previous decisions simply by issuing a circular.

In R v Knuller (Publishing, Printing and Promotions) Ltd.[8], Lord Simon of Glaisdale discussed the background that led to the practice statement, the mode adopted for modifying the centuries old practice and the sanction it is believed to have had. He observed:

“The declaration of July 26, 1966, was not made in the course of decision of a judicial appeal to your Lordships — even though it is in fact arguable that, notwithstanding anything said in previous cases, your Lordships are entitled at common law to depart from previous decisions: cf. the judgment of the Supreme Court of the United States in Linkletter v. Walker (1965) 381 U.S. 618. Nor was the declaration of July 26, 1966, the subject-matter of statutory enactment. But, since the announcement was made by the Lord Chancellor, it must be taken to have had general executive approval[9]; nor was any objection raised elsewhere in Parliament. The new practice announced in the declaration of July 26, 1966, must therefore, in my view be considered to be one of those conventions which are so significant a feature of the British Constitution, as Professor Dicey showed in his famous work. But it follows, in my respectful submission, that the actual terms of the declaration must provide essential guidance to your Lordships in making use of the new freedom vouchsafed by it.”

Later, in 1979, in Davis v. Johnson[10], Lord Salmon said that the“…announcement was made with the unanimous approval of all the Law Lords.”

It is unclear how the law declared by the House of Lords by various judgments could have been overruled or departed from by simply issuing a practice circular. It is also unclear how the fact that no objection was raised in Parliament to the circular or the fact that it had “general executive approval” could be a relevant factor. However, the fact remains that the circular has been accepted as having the sanction of law since then, has been consistently relied upon in number of judgments and has been firmly accepted to be a part of the law and practice of England.

Application of the Practice Statement by the House of Lords and by the Supreme Court of the United Kingdom

The Practice Statement brought in the change intended. From then till now, it has been relied on in several judgements[11] by the House of Lords (until its dissolution in 2009) and thereafter by the Supreme Court of the United Kingdom to overrule or depart from earlier decisions. In R v. Shivpuri[12], the House of Lords overruled its previous decision with Lord Scarman saying:

“The Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.”

In Austin v. Southwark London Borough Council[13], the newly established Supreme Court of the United Kingdom said that the 1966 Practice Statement “has as much effect in this court as it did before the Appellate Committee in the House of Lords.”

However, the House of Lords (until its dissolution in 2009) and thereafter the Supreme Court of the United Kingdom have in several judgments stressed on the importance of certainty and consistency in law and have laid down that the power to depart from a previous decision is one to be most exercised in rare cases[14], not merely if the previous decision is wrong[15] and not merely because a differently constituted House takes a different view but only if there is something more[16], only if there is very good reason to do so[17], in exceptional cases where adherence to the precedent would involve risk of injustice and obstruct the proper development of the law and where departure is the safe and appropriate way of remedying the injustice and developing the law[18], where it involves a broad issue of justice and public policy and an important question of legal principle[19], where there is a fundamental change in circumstances or where experience shows that the decision results in unforeseen serious injustice[20], where the previous decision deprives a party of a right conferred by Parliament and subverts the intention of Parliament[21], where the reasoning in the previous decision on the point at issue is illogical and its application results in unfair outcomes[22]. Recent judgments of the Supreme Court of the United Kingdom[23] have reiterated the importance of adhering to precedents by providing that they should be departed from only in certain situations.

Court Of Appeal

In England, the Court of Appeal is bound by its own previous decisions. In Young v. Bristol Aeroplane Company[24], the Court of Appeal held this rule to be beyond controversy. Lord Greene, M. R. held that the Full Court comprising of all members would be equally bound even if the previous decision was of a division of three members. Lord Greene, M. R. said:

“….It is true that in this and similar cases the court which held itself to be bound by previous decisions consisted of three members only, but we can find no warrant for the argument that what is conveniently but inaccurately called the full court has any greater power in this respect than a division of the court consisting of three members only.

The Court of Appeal is a creature of statute and its powers are statutory. It is one court though it usually sits in two or three divisions. Each division has co-ordinate jurisdiction, but the full court has no greater powers or jurisdiction than any division of the court. …..Neither in the statute itself nor (save in two cases mentioned hereafter) in decided cases is there any suggestion that the powers of the Court of Appeal sitting with six or nine or more members are greater than those which it possesses when sitting as a division with three members. In this respect, although we are unable to agree with certain views expressed by Greer L.J. as will presently appear, we think that he was right in saying that what can be done by a full court can equally well be done by a division of the court. The corollary of this is, we think, clearly true, namely, that what cannot be done by a division of the court cannot be done by the full court.”

Therefore, a decision delivered by the Court of Appeal binds future benches irrespective of whether they comprise of greater, lesser or equal number of judges. This is very unlike the position in India where larger benches of the Supreme Court and of the High Courts are not bound by decisions of smaller benches of the same court.

In Young v. Bristol Aeroplane Company (supra), while holding that it is bound to follow previous decisions, the Court of Appeal, however, carved out the following limited exceptions to the rule:

1. The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

2. The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.

3. The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.

The decision of the Court of Appeal in Young v. Bristol Aeroplane Company (Supra) was confirmed by the House of Lords in Young v. Bristol Aeroplane Company.[25] Viscount Simon said:

“One of the conclusions reached in the judgment of the Master of the Rolls, with which I agree, is that if the Court of Appeal, when sitting in one of its divisions, has in a previous case pronounced on a point of law which necessarily covers a later case coming before the court, the previous decision must be followed (unless, of course, it was given per incuriam, or unless the House of Lords has in the meantime decided that the law is otherwise), and that this application of the rules governing the use of precedents binds the full Court of Appeal no less than a division of the court as usually constituted.”

However, in 1978, in Davis v. Johnson[26] decided by the Court of Appeal, Lord Denning, M. R., traced the history of the Court of Appeal (and its predecessor courts) and after relying on several decisions held that the Court of Appeal had the power to reconsider its decisions and had in the past done so. Lord Denning said:

“..a rule as to precedent (which any court lays down for itself) is not a rule of law at all. It is simply a practice or usage laid down by the court itself for its own guidance: and, as such, the successors of that court can alter that practice or amend it or set up other guide lines, just as the House of Lords did in 1966. Even as the judges in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, thought fit to discard the practice of a century and declare a new practice or usage, so we in 1977 can discard the guide lines of 1944 and set up new guide lines of our own or revert to the old practice laid down by Lord Esher. Nothing said in the House of Lords, before or since, can stop us from doing so…”

The matter went to the House of Lords. The House of Lords in Davis v Johnson[27] severely criticised the judgment of Lord Denning and once again affirmed the judgment of the Court of Appeal in Young v Bristol Aeroplane Co Ltd (supra) and the rule that the Court of Appeal is bound by its own decisions subject to the exceptions carved out in Young v Bristol Aeroplane Co Ltd (supra).

Young v Bristol Aeroplane Co Ltd (supra) (Court of Appeal) and Davis v. Johnson (House of Lords) have been relied on in later judgments of the House of Lords and of the Supreme Court[28]. In R v. Secretary of State for Work and Pensions[29], the House of Lords held that where a previous decision of the Court of Appeal is inconsistent with a subsequent decision of the European Court of Human Rights, the Court of Appeal should be free (but not obliged) to depart from that decision.

The Privy Council

Prior to independence, the Judicial Committee of the Privy Council was the highest court of appeal for matters arising from British India and other British colonies[30]. The judgments of the Privy Council were binding on courts in British India. Even today, Privy Council judgments continue to be binding on all courts in India (other than the Supreme Court of India) except where they are inconsistent with decisions of the Supreme Court of India.

Unlike the House of Lords which prior to 1966 considered itself strictly bound by its previous decisions, the Privy Council has not considered itself strictly bound by its previous decisions[31]. However, previous decisions have always had great weightage. In Gibson v. Government of the United States[32], the Privy Council drew on the principles adopted by the House of Lords after 1966 as to when it may depart from a previous decision. Therefore, now, the practice followed by the House of Lords and the Privy Council is similar. The recent judgment of the Privy Council in Chandler v. Trinidad and Tobago[33] affirms the view taken by earlier judgments and discusses the legal position.

In 1955, in the Bengal Immunity Case[34], the first major judgment of the Supreme Court of India on stare decisis, the Supreme Court drew heavily from the practice followed by the Privy Council and relied on In Re Compensation to Civil Servants[35] and the Attorney-General of Ontario v. Canada Temperance Federation[36] and held that it is open to the Supreme Court to not follow a previous judgment. Therefore, early from the 1950s, the practice followed by the Privy Council became the template for a more flexible application of stare decisis in India. The Indian Supreme Court and the High Courts have on various occasions departed from the views taken by smaller benches of the same court.

The author is an advocate practicing at the Gujarat High Court. Views are personal.