The Use of Practice Statement 1966 and the House of Lords - Essay Example

?Critically assess whether the UK Supreme Court's approach to the use of Practice ment 1966 should be more racial than that of the House of Lords, in order to achieve reform of the law. The Practice Statement of 1966 was made by Lord Gardiner in the House of Lords. As per this statement, the House of Lords could now have the freedom to move away from a 'rigid adherence to precedents' so that the process of law development happens smoothly and there is no restriction that stands in the way of law development (Loveland, 2004). Thus, the House of Lords can depart from the previous decisions as well as the precedents that have been set previously, if it wishes to in circumstances where the precedents are either out of date or erroneous. This set a turning point in the judicial history of the United Kingdom. As the process of law development is one which is evolving continuously, scholars have discussed how the practice statement of 1966 can be used more radically. This study critically assesses whether the UK Supreme Court's approach to the use of the Practice Statement 1966 should be more radical than that of the House of Lords, in order to achieve reform of the law. Prior to understanding the various scenarios where the Practice Statement has been used, it is necessary to also understand certain terms that are used commonly with regard to it. The first one is rules of precedent. Precedent is the concept that any rule that has been established in an earlier case should be adhered to in cases that are similar, so that similar cases should be given similar outcomes (Garner, 2009). It also means that inferior courts should stand by the decisions that have been made in a superior court. The other important terms include ratio decidendi and obiter dictum. Ratio decident translates to reason for the decision and obiter dictum translates to statements made by the way or in passing. These are two parts of a ruling made by the judge (Garner, 2009). Ratio Decidendi explains laws based on which any particular judgment has been made. During the process of judgment delivery, the judge is bound to explain the law and reason based on which he or she arrived at the particular ruling. These are included in the 'law report' and hence, it forms the 'basis of precedent'. Obiter dicta, which are the statements that have been passed by the way and hence they are not binding (Garner, 2009). For example, the discussion or speculations that are made by a judge on how his or her decision would change if the situations had been different fall under obiter dictum. While Obiter dictum is not binding, it is often used as a reference or persuasive agent in future cases. Before the Practice Statement was introduced in 1966, there were several instances where the House could not bring about a change from the precedent set because of the rigid stare decisis 'let the previous decision stay'. One such example is that of London Tramway Co Vs. London County Council (1898) (Erp, 2011). Regarding this matter, Lord Halsbury stated that once a decision has been made, it binds the House of Lords and all the other inferior courts. Halsbury said that, "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." (Erp, 2011, 12) An important aspect to remember with regard to the Practice Statement of 1966 is that the decisions that have been made by the highest body (earlier the House of Lords and now the Supreme court) are binding to all the other courts that come below it. In addition, the decision that have been made by the Supreme court also are binding on itself - however, the Practice statement has enabled it to depart from the previous decisions depending on the particular situations (McLeod, 2011) Practice Statement of 1966 has been used many times, but there are two main cases through which the use of Practice Statement of 1966 can be illustrated. The first major case is that of Herrington Vs. British Railways Board in 1972. In this case, the house of Lords did not adhere to the precedent set by the 1929 case of Robert Addie & Sons V Dumbreck and ruled that businesses have a definite duty towards child trespassers because of "common duty of the humanity" (Erp, 2011). In 1929, a duty like this was not considered, but the ruling of 1972 was one which adapted to the changing times. Another important case is that of RV Shivpuri which happened in 1987. In this case, the House of Lords departed from the previous case of Ryan Vs Anderton - where they thought that the decision was erroneous and the convict could escape. As per the Shivpuri ruling, it stated that an individual’s belief can have a liability, even if the crime had not been done (Erp, 2011). This is another example of how law development has evolved over the years. Lawyers and scholars have discussed the advantages and disadvantages of the Practice statement of 1966. One of the biggest advantages of the Practice statement of 1966 is that it allows law development (Miele, 2010). As the society undergoes change, it is necessary for the law to adapt itself to be suitable for the current society. Therefore, outdated practices can be removed from the system. Another advantage is that it can ensure that any erroneous judgment that would have been made earlier would not be repeated as the House does not have to consider the precedent (Miele, 2010)). The use of the Practice statement ensures that the law reforms happen regularly and the judiciary keeps it pace with the way in which changes in the society occur. However, there are also some disadvantages that need to be considered. Firstly, great caution should be exercised while using the Practice Statement of 1966 because it is easy to get influenced about the new aspects without looking at all the aspects of the previous case (Miele, 2010)). Secondly, it can often lengthen the entire process because there are no precedents and hence, not much of information available for reference. If not carefully considered, it can also lead to excessive modification of law (Miele, 2010). An important landmark in the British Judicial history was the establishment of the Supreme Court in 2009 (Lee, 2011). Hitherto, the House of Lords was the top most judicial authority. Post the establishment of the Supreme court, there is an intense debate on whether the UK Supreme Court's approach to the use of the Practice Statement 1966 should be more radical than that of the House of Lords, in order to achieve reform of the law – especially because the socio-economic scenario of the country is undergoing rapid change. The primary reason that Supreme Court should adopt a more radical approach towards the Practice Statement is that as it is now an independent body that has the sole purpose of being the top judicial body of the country, it is easier for them to ensure that any false precedents or erroneous judgments are done away with. As the Supreme court is free from other bodies such as the executive and the legislature, it can also ensure that laws adapt with the modern times and cater to the current needs of the society, rather than just following the precedents set earlier. When it comes to the House of Lords, they have been considered to be extremely reluctant in applying the Practice Statement in a free manner (Lee, 2011). Part of this reluctance could be because of the fact that the statement itself mentioned that it should be used with extreme caution. For example, the case of Jones Vs Secretary of State for Social Services was about two fitters who got injured in a workplace accident, but were refused the disability benefit (Lee, 2011). The House of Lords did not overrule this decision even though the members of the house thought that the decision was erroneous. Now that the Supreme Court is independent and has only the judicial function, it is a good opportunity for it to be aggressive and use the Practice Statement wherever it is possible, rather than being conservative as in the case of Jones Vs Secretary of State for Social Services. Even though the House of Lords had a Judicial committee that comprised of 12 senior judges who were appointed into the House of Lords to make all the judgment, the public perception of the House of Lords was that judicial judgments were largely taken by the collective members of the House (Blom-Cooper, 2009). Therefore, the public also did not expect them to use the Practice Statement in a radical manner. However, after the formation of the Supreme Court the members have a higher expectation that any erroneous decision or out-of-date and irrelevant precedents would not be followed blindly. Therefore, being an independent judicial body, the Supreme Court has good opportunities to make sure that the Practice Statement of 1966 is used as and when necessary so that the reforms of the law are made from time to time to ensure the adaptability to current situations. References Blom-Cooper, L., Dickson, B and Drewry, G. 2009. The Judicial House of Lords: 1876-2009 . Oxford: Oxford University Press Garner, B. eds. 2009. Black's Law Dictionary - 9th edition. Minnesota: West Group Erp, S. 2011. Teaching Law in Europe: From an Intra-Systemic, Via a Trans-Systemic to a Supra- Systemic Approach. Maastricht Faculty of Law. Working Paper No. 2011/10 Lee, J.2011. From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging. London: Hart Publishing. Loveland, I. 2004. Constitutional Law Administrative Law and Human Rights: A critical introduction. Oxford: Oxford University Press McLeod, I. 2011. Legal Method. Basingstoke: Palgrave McMillan. Miele, C. 2010. The Supreme Court of the United Kingdom : History, Art, Architecture. London: Merrell Read More