Introduction
The doctrine of stare decisis, meaning to ‘stand by things decided’, is a cornerstone of the English common law system. It ensures that the law is certain, consistent, and predictable by requiring courts to follow the past decisions of superior courts, and generally their own past decisions. The assertion that this doctrine has had ‘no practical effect’ since the Lord Chancellor’s Practice Direction of 1966 is a significant overstatement. While the Practice Direction undoubtedly introduced a crucial element of flexibility into the system of judicial precedent, it did not abolish the doctrine. This essay will argue that stare decisis remains a powerful and practical force within the English legal system, primarily because the 1966 change was limited in scope, its power has been used sparingly, and the fundamental principle of vertical precedent remains untouched.
The Doctrine of Stare Decisis and the 1966 Practice Direction
Prior to 1966, the doctrine of stare decisis was applied rigidly. The House of Lords, as the final court of appeal, considered itself absolutely bound by its own previous decisions. This rule was firmly established in London Street Tramways v London County Council (1898), where the court held that the need for finality in litigation and certainty in the law was paramount. While this provided stability, it also meant that an incorrect or outdated decision could only be changed by an Act of Parliament, a process which can be slow and is subject to political pressures.
Recognising this rigidity, Lord Gardiner LC issued the Practice Statement (Judicial Precedent) in 1966. This statement declared that the House of Lords (now the Supreme Court) would no longer be absolutely bound by its own past decisions. The House would be able to depart from a previous decision ‘when it appears right to do so’, while treating its former decisions as ‘normally binding’ ([1966] 1 WLR 1234). The goal was to allow the common law to develop in line with changing social conditions and to correct past errors. However, the statement itself contains the key to its limited impact: it acknowledges that past decisions remain ‘normally binding’ and the power to depart would be used with caution.
The Continuing Practical Effect of Stare Decisis
The claim that stare decisis has no practical effect is incorrect for three main reasons. Firstly, the Supreme Court has used its power to depart from precedent sparingly. This caution was emphasised in Austin v Southwark London Borough Council (2010), where the Supreme Court confirmed that the power should be exercised only in specific circumstances, not simply because a previous decision is thought to be wrong. Early use of the power, for example in R v Shivpuri (1987) to overrule the recent and problematic decision in Anderton v Ryan (1985) on criminal attempts, demonstrates its utility for correcting clear errors. However, the reluctance to use it frequently shows that the court still places a very high value on the principle of certainty which stare decisis provides. The default position is to follow precedent.
Secondly, and most significantly, the 1966 Practice Direction only ever applied to the House of Lords/Supreme Court itself. It did not alter the rules of vertical precedent, which are the most practical and frequently encountered aspect of the doctrine. Every court in England and Wales remains absolutely bound by the decisions of courts superior to it in the judicial hierarchy. The Court of Appeal, High Court, and all lower courts must follow the decisions of the Supreme Court. This was strongly reaffirmed in Davis v Johnson (1979), where the House of Lords rebuked Lord Denning for suggesting the Court of Appeal could ignore a binding precedent from the House. This rigid hierarchical structure ensures uniformity across the legal system and is the essence of stare decisis in practice.
Finally, the rules of horizontal precedent in other courts remain largely unchanged. The Court of Appeal is, for instance, still bound by its own previous decisions, subject to the limited exceptions set out in Young v Bristol Aeroplane Co Ltd (1944). These exceptions allow departure only in cases of conflicting past decisions, or where a past decision has been implicitly overruled by the Supreme Court, or was made per incuriam (in error). This shows that for the vast majority of appellate cases, which are heard in the Court of Appeal, the doctrine of precedent operates with significant force.
Conclusion
In conclusion, the statement that the doctrine of stare decisis has had no practical effect since 1966 is fundamentally inaccurate. The Practice Direction was a modification, not an abolition, of the doctrine. It introduced a necessary degree of flexibility at the apex of the court system to prevent the law from becoming ossified. However, the core principles of the doctrine remain robustly in effect. The Supreme Court has used its power to depart from precedent with considerable caution, and, more importantly, the strict rule of vertical precedent continues to bind all lower courts. The doctrine of stare decisis, therefore, continues to serve its primary function of providing certainty, consistency, and predictability in English law, and its practical effect remains profound.
References
Anderton v Ryan [1985] AC 560
Austin v Southwark London Borough Council [2010] UKSC 28
Davis v Johnson [1979] AC 264
London Street Tramways Co Ltd v London County Council [1898] AC 375
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
R v Shivpuri [1987] AC 1
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Routledge.
Young v Bristol Aeroplane Co Ltd [1944] KB 718
