STARE DECISIS IN THE HOUSE OF LORDS
| Published date | 01 March 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02199.x |
| Date | 01 March 1962 |
| Author | Gerald Dworkin |
STARE
DECISIS
IN
THE
HOUSE
OF
LORDS
A. THE ORTHODOX
POSITION
A
DECISION
of the House of Lords upon a question of law is
con-
clusive and binds the House in subsequent cases. An erroneous
decision can
be
set right only by an Act of Parliament. To the
student of the English legal system
no
rule appeared to be more
fundamental. After some slight doubt in the early nineteenth
century the position was categorically restated by Lord Halsbury
L.C. in
London
Street
Tramways
v.
L.C.C.'
An
important reason for the existence of this rule is that in a
Common Law country, where there is no comprehensive legal code,
a
consistent body of law must be developed. Inferior courts may
haggle and differ, but the ultimate court must be majestic,
Arm
and consistent.
It
is said that there would never be consistency
and certainty in the law
if
the House of Lords had the power to
review its own decisions. It is allowed no second thoughts about
the law and (in its judicial capacity) must have
no
legislative
functions. Lord Halsbury L.C. was aware that this principle
might work individual hardship but asked
"
what is that occasional
interference with what
is
perhaps abstract justice as compared with
the inconvenience-the disastrous inconvenience-of having each
question subject ta being reargued and the dealings of mankind
rendered doubtful by reason
of
different decisions,
80
that
in
truth
and in fact there would be
no
real final Court
of
Appeal
?
"
If
the
law works injustice then
it
is
for Parliament to change it.
An excellent example of a legislative reversal of a judicial deci-
sion
occurred recently with the
Hinchy
saga. The penalty provi-
sions for income tax offences, consolidated in the Income Tax Act,
1952,
had their origins in Acts as early as
1799,
1808
and
1806,
and
many serious anomalies existed even in
1960.
Committees had
recommended that the penalty provisions should be reviewed and
that they should be remodelled in the light of conceptions appro-
priate to
the
present day. When
these provisions were set to work harshly and oppressively against
poor
Mr.
Hinchy, a retired civil servant, the judges in the High
Court and the Court
of
Appeal bravely attempted to interpret the
provisions in
a
way that would be just and sensible. The House of
Lords rejected their efforts.2 The court emphasised that the plain
meaning of the words must be applied and, also, a previous House
of
Lords
decision must be followed.
If
this brought about a silly
and
oppressive result
it
was not the fault of the judges but of the
But nothing had been done.
1
[lW]
A.C.
875.
I
Idad
Rsaervs
Cornrnwaioners
v.
Hinchy
[1960]
A.C.
740.
168
164
THE
YODERN
LAW
REVIEW
VOL.
!a
Legislature, and
if
the law was to be changed, then
it
was for the
Legislature to do this. The House of Lords thus applied harsh law,
but criticised it. Almost immediately the law was changed when
the Finance Act,
1860,
introduced a new and more just set of
penalty provisions.
This is an ideal illustration of the theoretical relationship
between judiciary and legislature. The law was changed as soon
as the courts showed how absurd the position was. Unfortunately,
these examples are rare. More commonly,
if
the House of Lords
perpetuates bad law,
or
construes a statute to reveal unjust law,
nothing is done to remedy the situation because Parliament does
not have the time. There are several decisions
of
the House
of
Lords which have been criticised generally, but which still repre-
sent binding precedents
for
future
courts.*
B.
"
ORTHODOX
')
METHODS
OF
MODIFYING
THE
OBTHODOX
If
Parliament rarely has time
to
change bad law, what methods
have been available
to
the House
of
Lords to enable
it
to evade its
own previous decisions?
It
certainly could not bluntly refuse to
follow a previous decision, since, as we have seen,
it
is bound by
London
Straet Tramways
v.
L.C.C.4
The rules in
Young
v.
Bristol
Aeroplane
CO.~
which lay
down
some of the exceptions to the rule
that the Court of Appeal is bound by its
own
previous decisions
might also provide some assistance in the House
of
Lords, although
there is little authority on this. The first exception to the rule in
the
Court
of Appeal is thqt the court
is
entitled and bound
to
decide which of two conflicting decisions of its own it will follow.
There is no logical reason why this principle should not apply
to
the supreme tribunal.
It
may be that there are more of these
decisions than is generally believed,
for,
at present,
no
one
knows
quite what authoritative law is concealed in House
of
Lords
deci-
sions which are not reported in the regular reports.s However,
8
See
Salmond
on
Jurisprudence
(11th ed.,
Dr.
Glanville Williams) App.
IV,
p.
698.
There is
en
excellent discussion
of
precedent in the House
of
Lords
at
p. 176
et
seq.
4
[I8881
A.C.
376.
It
is possible to launch a direct attack on this cane by using
various historice!, and philosophica~ arguments.
St:
(1951)
63
Juridical
Reoiecu,
p.
933,
Precedents in the House of Lords, Landau. The writer
shows that
the
rule historically is unjustified and aaggests that the
House
of
Lords
would be quite within its conEtitutiona1 rights were
it
to overrule
London
Strcet
Tramways
v.
L.C.C.
The
rule
having been established
by
the
House
of Lords itself, it appears to be doubtful whether the House
is
bound by it-the legislature in
its
own sphere cannot in like manner
restrict
its
own future action.:', See
also,
Crons,
Precedent
in
English
Low
(1961)
p;.
!2?9-260;
Simpsqf, The Ratio Decidendi
of
a
Case and the Doctrine
of
inding Precedent, in
Ozford
Essays
in
Jufisprudenoe
(1961)
p.
14
et
req.
5
[1944]
K.B.
719.
6
"
I
have often wondered what would happen, if some learned and induntrious
E"'"""
com
iled
from
the
records and
casen
lodged
by
the
parties
in
your
ordships house, and the transcripts
of
your
Lordships' opinions preserved
in
the Parliament Office,
a
selection
of
Unnoticed
House
of
Lords
Cases.'
The
reeults might be Somewhat unexpected, but
the
decirions themeelves
all
POSITION
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