This essay comprises of two parts. The first part concerns itself with the study of the balance between the roles of Parliament, which is the supreme law-making body in the United Kingdom and that of the judiciary, whose traditional function is considered to be restricted to ‘applying’ the law made by Parliament. Further, the development of Common Law, the role of English courts in making the laws, the part played by parliament in making legislation and the importance of the European Community and its supremacy over the laws of the United Kingdom are discussed in brief. Moreover, the applicability of the doctrine of stare decisis in various cases and its importance in making the law in the United Kingdom are elaborated upon.
In the second part judicial creativity, precision, flexibility of making decisions by judges and the advantages of predictability while arriving at conclusions are discussed in brief. The dangers inherent in the application of the doctrine of Stare Decisis, as it limits the flexibility and unassailability of some principles were discussed in detail in the light of the decision in the case of R v R.
The doctrine of judicial precedent relates to the importance of case law in the British Legal System and in reality connotes the lawyer’s term for legal experience. It is one’s common experience that we tend to repeat things we have done before and the law does not differ much from this experience. Miles Kington was quoted in Punch as stating that judicial precedent connotes, ‘A trick which has been tried before, successfully.’ This constitutes the principle of stare rationibus decidendis; usually termed as stare decisis. Its translation is ‘Let the decision stand’. Stare rationibus decidendi is the more accurate term, because, it is the reasoning or rationibus that is the vital binding element in judicial precedent.
“In English law there are three main institutional sources…Parliament, the courts and the European Community.” (J.A. Holland and J.S. Webb (2003), Learning Legal Rules, Oxford University Press, at page 3,)
Discuss the importance of two of these sources to the law making process in England and Wales
The legal systems of the United Kingdom were largely based on judicial precedent until around the seventeenth century with each jurisdiction developing its own form of the common law. Subsequently, new laws and law reform emerged due to the various Acts of Parliament. Nevertheless, case-law has remained an important source of law and a statement of law made in a case has often become binding on later judges.
The requirements for a particular pronouncement or a precedent, by a judge while deciding a case to be binding on subsequent judges, due to the doctrine of stare decisis, requires that it should have been made by a sufficiently senior court. Essentially, judges at the lowest rungs of decision making cannot issue binding precedents, because in many instances, the cases are not fully reported and thereby rendering unclear what has been decided. Further, these judges may be concentrating on factual findings and not hearing full legal arguments. Hence, only the higher courts issue binding rulings that the lower courts have to follow.
The legal pronouncement must form the ratio decidendi of the case and the reasoning should pertain to the law rather than be a factual decision. Additionally, the pronouncement must not be obiter dictum for the legal basis of the decisions and only the ratio decidendi, which comprises of the legal principles and rules necessary to solve the problem before the court will be binding.
The most important pieces of legislation are the Acts of Parliament or the primary legislation, which are validated only after being approved subsequent to a debate in the House of Commons and the House of Lords and after receiving the Queen’s Royal Assent. Most of the laws are made by Government Ministers under the authority of primary legislation. These laws are known as delegated or secondary legislation and do not require prior approval of the Parliament. They are issued, under a specific power in the "parent" or "enabling" Act, in the form of statutory instruments, which can be termed as "regulations" or "orders". Delegated legislation saves Parliament’s time.
A comparison between legislation and common law reveals that in general statutes can change the established common law, but not vice – versa, since a statute can be overruled or amended only by another, later statute. This relationship is the doctrine of Parliamentary Sovereignty, which recognizes and accepts the fact that Parliament is the supreme law-making authority. However, this authority has been curtailed by the relationship with the European Union, and the fact that the recognition of individual freedoms, democracy and governmental accountability has further restricted its exercise.
The three main rules used by the judges in interpreting the Acts of Parliament are, first, the literal rule, whereby the statute is interpreted literally as established in Fisher v Bell and second, the golden rule, as was applied in Adler v George, wherein a literary interpretation resulting in an absurdity, is modified to a less obvious meaning by the court. Alternatively, it may arise from the policy implications of a literal interpretation; and finally, the mischief rule, which requires definition of the problem meant to be rectified by the Act and subsequent selection of that interpretation which best deals with it.
The other specific rules of interpretation are first, rules of language, or the eiusdem generis rule, in which general words follow a list of specific examples and are interpreted according to certain specific words and hence are not as general as they appear prima facie. Expressio unius est exclusio alterius or when an Act mentions a specific type which therefore excludes other types and Noscitur a socciis or the elucidation of ambiguous words or phrases according to the context of their usage. The second is presumptions, wherein judges require strong evidence to the contrary, as they subscribe to certain assumptions about the intentions of Parliament, like it is not Parliament’s intention to impose criminal liability, deprive anyone of their fundamental rights and to exclude the courts from deciding disputes.
The civil law though involving duties confers powers and rights and concentrates mainly on relations between private individuals, further, the procedures to be adopted in civil and criminal cases and the burden of proof and outcomes are different. The Civil law strives to obtain compensation for the aggrieved person or to restore the status quo ante, Vis – a – Vis the litigants, while the Criminal law is seized with the matter of punishments like fines or imprisonment and is decided by the state rather than the victim.
In 1972, the UK incorporated the European law into UK law by the European Communities Act 1972. Section 2 of this Act makes European law a valid and binding source of UK law. In any context if European law exists then it supersedes the corresponding UK law including Acts of Parliament, thereby compromising the doctrine of parliamentary sovereignty. In R v. Secretary of State, restrictions were placed on fishing by Spanish trawlers and despite changes to the fishing regulations made by the merchant Shipping Act (Amendment) Order 1989 SI No.2006, and by the Merchant Shipping (Registration) Act 1993 substantial damages had to be paid to the Spanish trawler owners.
The challenge to the sovereignty of the UK Parliament was initially limited, because of the limited scope of the European Communities, which were considered by the UK to be synonymous to sophisticated free trade areas. However, after 1986, the European Communities transformed themselves into a Union with some of the traits of a Federal State and thereby attained a status, which was much greater than that of an international agreement.
“The great value of the doctrine of stare decisis is that it provides certainty. On the other hand, there are dangers: [for example]. . . the doctrine limits flexibility and can make unassailable some principles which should have been abandoned long ago.” (J.A. Holland and J.S. Webb(2003), Learning Legal Rules, Oxford University Press, at page 143)
Discuss this statement in light of the case of R v R  3 WLR 767;  I All ER 481.
The powers of the Legislature, Judiciary and the Executive have been separated in England and Wales; in order to ensure that the law is made, performed and enforced by different bodies. This is the principle of the “rule of law”. The doctrine of precedent or Stare Decisis, which means “let the decision stand”, implies that a decision binds an equal or lower court in similar cases.
The legislative process employs a systematic, formalized method of rule making, whereas case law development is not so. The common law or judge-made law has evolved over a period of time and has for its basis the doctrine of stare decisis, which requires a judge to follow the ruling of another judge of the same, or higher, court on the same issue. This results in the derivation of new case law from legal principles already in existence. Judges are restrained from taking ad hoc decisions due to the requirement of stare decisis and this ensures security and stability in the development of the common law.
The doctrine of judicial precedent or stare decisis is not merely a process of establishing similarities and differences, but embodies the art of interpretation, the art of advocating the principle to be derived from each case and the art of legal arguments.
In Adams v Lindsell, the acceptance in contract through postal service was established. In Dunlop v Higgins, Dunlop offered to sell iron to Higgins and accordingly asked him to confirm by return of post. Higgins accepted in a letter which was delayed due to bad weather.
In the interim, Higgins sold the iron to another person, as there had been an increase in the price of iron. The House of Lords held that a contract existed from the moment the letter of acceptance was posted. This judgment was applied to Household Fire Insurance v Grant, wherein the Court of Appeal’s Thesiger LJ held that once the letter of acceptance was posted the parties were contractually bound.
In R v. R, the House of Lords analysed the common law marital rape immunity. In this case the defendant violently raped his wife, who had separated from him and was living with her parents, by breaking into their home and in the presence of their children. The defendant on conviction appealed to the House of Lords who confirmed the conviction, and refused to apply the immunity which had become archaic and odious and that such immunity was not in consonance to the current position of women or the contemporary perception of marital responsibilities.
The Crown was of the opinion that the law assumes that a wife on marriage consents to sexual intercourse with her husband. This assumption is refuted by evidence of lack of consent, by the wife who can indicate this by merely saying "No." The established exceptions are consistent with the existence of such a rebuttable presumption. Hence, this conviction was upheld and it was opined that this could be achieved either by extending the applicability of those exceptions or by asserting that the statement was never the law or is no longer the law and that mere antiquity on its own is insufficient to justify the existence and applicability of an obsolete principle.
The enactment of legislation is the prerogative of the Parliament and though judges do not consider themselves to be law-makers, nevertheless, they set legal precedent. This is due to the fact that they have a considerable amount of discretion in deciding whether to follow a particular precedent. It had been debated as to whether the decisions of the House of Lords, which binds all lower courts, should be binding on a future House of Lords. This was clarified in Practice Statement (Judicial Precedent) where it was held that, ‘too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. ’
In Miliangos v George Frank (Textiles) Ltd, the House of Lords, which had previously required all awards of damages in an English court to be made in pounds sterling, decided to do away with this stipulation in light of the changes in international trade and the status of the British Pound, and in this manner made a departure from their previous decisions.
In R v Shivpuri, the House of Lords overruled its own precedent from Anderton v Ryan so as to rectify an error of interpretation of the Criminal Attempts Act 1981 on attempting the impossible. It did so by resorting to the Practice Statement 1966 which permits the court to ignore past precedent ‘when it appears right to do so’. Lord Bridge held in his judgment that it was imperative for the House to do so as the material facts did not allow these two cases to be distinguished from each other. This constitutes a rare and very important example of the House of Lords overturning its own decisions because it realized that its previous decision was erroneous. This happened once again in Murphy v Brentwood District Council, where their Lordships overturned their decision in Anns v Merton London Borough Council .
The case law reveals that the House of Lords sometimes sets aside precedent and at times accepts it. Thus in Arthur J.S. Hall & Co. (a firm) v Simons the House of Lords, set aside their own decision in Rondel v Worsley and in the process made advocates liable for negligence in the conduct of civil proceedings, since the public policy reasons for the grant of such immunity was inconsistent with the probity and scrutiny required in a modern society. However, in R v Kansal (Yash Pal) (No. 2)  the House of Lords criticized their own previous decision in R v Lambert (Steven), which related to the application of the Human Rights Act 1998 to incidents which transpired prior to the promulgation of that Act. Whenever the decision of a lower court is overturned on appeal, the first judgement is termed to have been ‘reversed’. This directly affects the parties to the case as there is reversal of fortunes and the losing party becomes the winning party and vice versa. Courts are in general disinclined to overrule longstanding authorities because of the system of stare decisis, and will take recourse to the stratagem of distinguishing in order to avoid binding precedents. In Young v Bristol Aeroplane Co. Ltd the Court of Appeal clearly demonstrated that it was not required to adhere to its own earlier decision, where some relevant statutory provision or precedent was not made known to the court.
The advantages of this system are predictability due to the fact that it is possible to determine the likely decision that the court will take; precision due to the relation between the statement of law and the facts of the case and flexibility, which is inherent due to the possibility of overruling and distinguishing. Further, the equitable discretion employed by the judges and the limiting of operation of decisions which seem to be unsound increases this flexibility. Finally, the system is highly adaptable to attitudinal changes in the public and serves to promote what is fair and equitable in society. From the various cases discussed it is evident that the courts refrain from attaching importance to precedent, which is too rigid and illogical resulting in injustice and constrained development of the law.
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 (1991). 3 WLR 767; (1991). I All ER 481
 With some exceptions under processes laid down by the Parliament Acts 1911-1949.
 Often by a government minister.
 There are also powers under the Local Government Act 1972 for local authorities to issue delegated legislation – these are called bye-laws.
 (1960) 3 All ER 731
 (1964). 2 QB 7
 Smith v Hughes (1871) LR 6 QB 597
 AM & S Europe Limited v Commission of the European Communities (Case 155/79),  ECR 1575.
 Letang v Cooper (1965) 1 QB 232
 Sweet v Parsley (1969) 1 All ER 347
 R v Lord Chancellor ex p. Whitham  2 All ER 779
 Anisminic Ltd v Foreign Compensation Commission  1 All ER 208
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 This is best illustrated by the cases – Factortame v. Sec. of State for Transport (No.1)  2 W.L.R. 997 (HL); 1990 The Times 20 June (E.C.J.); (No.2)  3 W.L.R. 818 (H.L.);  3 All E.R. 769.
 R v Secretary State for Transport, ex p. Factortame (no 5) (1998) The Times 28 April 1998.
 (1818) 1 B & A 681
 (1848) 1 HLC 381; 9 ER 805
 (1879) 4 Ex D 216.
 (1991) 3 WLR 767
 Reg. v. Jackson  1 Q.B. 671
 (1966) 1 WLR 1234
 (1976) AC 443; (1975) 3 All ER 801.
 (1987) AC 1; (1986) 2 All ER 334.
 (1985) AC 567; (1985) 2 All ER 355
 (1990) 3 WLR 414; (1990) 2 All ER 908
 (1978) AC 728;  2 All ER 492
 (2002) 1 AC 615
 (1969) 1 AC 191
 (2001) UKHL 62; (2002) 2 AC 69
 (2001) UKHL 37
 (1944) KB 718