Martin Partington: Spotlight on the Justice System

In 1966, the Supreme Court (then the House of Lords) issued a Practice Direction which asserted its authority to depart, in exceptional circumstances, from an earlier decision and thereby change what was regarded as settled law.

Occasions on which this power has been used have been rare. Between the publication of the Practice Direction in 1966 and the abolition of the House of Lords in 2009, the power was used around 25 times. And its use has been similarly restrained by the Supreme Court.

One specific context in which there can be pressure to override a precedent arises where a judgement from the European Court of Justice (or indeed the European Court of Human Rights) is incompatible with UK law.

A question which arises from the departure of the UK from the European Union is how, after the end of the transition period on 31 December 2020, UK courts should deal with cases from the European Court of Justice which will remain effective in the UK (technically known as ‘retained case law’).

The Government has announced a consultation on whether the principle that only the Supreme Court (and the High Court of Judiciary in Scotland) should have this power, or whether other courts should be given the same authority.

The Government’s preliminary view, on which the opinions of consultees are sought, is that the powers should be extended to either:

• The Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK; or
• those courts plus the High Court of England and Wales, the Outer House of the Court of Session in Scotland, The Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.

This raises an interesting possibility. Many years ago, the late Lord Denning argued that the Court of Appeal should have power to depart from its earlier decisions. He felt that because all the important cases went to the Court of Appeal it would be more efficient is they had the authority to make clearly needed changes to precedent, without the expense and delay of a further hearing in the Supreme Court. This view found no general support at the time.

However, if either of the Government’s options in the present consultation is taken forward, might this not lead to a revival of the views Lord Denning, which in turn could generate a somewhat wider argument about the powers of courts other than the Supreme Court to change binding precedent?

The consultation is at https://www.gov.uk/government/news/consultation-launched-on-post-eu-reforms-for-british-courts