Stare decis is the old Latin term meaning, “To stand by things decided.” This legal principle states that all courts should adhere to decisions made in the history of the UK’s legal system.
The precursor to the Supreme Court was the House of Lords. It was made to follow its own decisions by the London Street Tramway’s v London County Council case of 1898. The House of Lords was entirely bound by its decisions. However, the situation changed due to the issuing of the Practice Statement in 1966 . It enabled the House of Lords to keep up with the evolving social conditions. This enabled a lesser form of stare decis to be enforced, which came to be known as persuasive precedent. This means that the House of Lords would be advised to follow stare decis, not forced to follow it. The Supreme Court is currently able to overturn decisions, but in principle does it infrequently, and only in cases of judicial mistake. This is highly controversial and I will explore the pros and cons of stare decis.
One reason for binding the Supreme Court deicsions is to avoid over-powering judges. An individual should be judged by common laws that have been instated in previous cases, to ensure equality. Equality is key in our justice system; offences that share certain attributes should be penalised in a similar manner. It should not be down to unelected and possibly biased judges to make the decision. Historic legal cases make it is easier to pass judgement on cases, as there are numerous cases to base a decision on. The UK Supreme Court has 12 justices all of whom are white , well educated, from upper class backgrounds, and hence hold very similar views. Is this a fair representation? Surely the law should reflect the diversity present within this nation? As Justice Lewis Powell once remarked, “the elimination of constitutional stare decisiswould represent an explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is.” Hence, as Justice Powell correctly remarks, the law cannot be simply decided by a few justices. It undermines the principle of an equal, fair constitution, and would leave room for personal allowances. Therefore, the Supreme Court is bound by all of its decisions, and so there is less room for individual biases, whilst also ensuring the law is not decided by individuals or small groups.
Another reason why we should have a Supreme Court bound by its decisions, is because we need to ensure the justice system has clarity. Put simply any citizen in the United Kingdom should be able to understand what the likely result of their case may be. Often, this is done by referring to old cases. This means that we use judicial decisions as a source of law. If there is a lack of clarity in the law , a different judge could interpret each case differently. It should not matter which judge is providing the ruling, or even how they interpret the law, and so clarity is essential. It is only just that any offender should have understanding of the law and what there position is.
However, there are reasons which argue the opposite, and state that the Supreme Court should not be bound by its decisions. Firstly, it is unfair to incorrectly punish any citizen. It is possible for mistakes to be made. It is widely accepted that judges have many biases. These biases could be applied to give an unfair ruling, which can be used as precedent. Therefore, the UK’s Supreme Court should be able to overturn this precedent. Mistakes are easy to make in the UK, as we have an uncodified constitution with 5 different sources of law. However, the flexibility this brings, is something that many suggest is essential and it is said to be the greatest advantage of our legal system. The Supreme Court has rightfully overturned precedent in the past, such as when they did so to the precedent to allow for the proroguing of government in 2019, which was against certain values. We should be willing to accept these overturned decisions, as they enable flexibility and fairness within our system; it also means that the offender can be punished properly. The change is not what matters – it is about doing the moral thing.
In addition, another reason why the Supreme Court should not be bound, is due to the evolution of society. The Practice Statement in 1966 acknowledged this, but did not go far enough. Society changes rapidly with opinions changing overnight through single, dramatic events. A key example of society changing opinion is after 9/11, when terror threats were taken more seriously. Hence, if society’s mindset changes, the punishment of a decision can be wholly different. This is central to our legal system, as in reality it is society punishing an individual, not the judges. It is crucial that the legal system can keep up with such changes. Technological crimes are growing, however, historically there are limited precedents for us to refer to, in order to solve certain modern cases. By only having access to a limited set of precedents, we are unable to hold offenders to account.
- Supreme Court (2018) “The Contribution of Scottish Cases to Developing United Kingdom” https://www.supremecourt.uk/docs/speech-181026-lady-hale-edinburgh.pdf
- The Oxford Shrieval lecture (2011) “Should the law be certain?”
- Verdict (2018) “What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term” https://verdict.justia.com/2018/08/06/what-we-can-learn-about-stare-decisis-respect-for-precedent-from-the-last-supreme-court-term
- Yale Law “2018” How to Realize the Value of Stare Decisis: Options for following Precedent”