How important is the regulation of royal prerogative by both the courts and parliament?

Under the monarchial constitution of the United Kingdom, the majority of prerogative powers are nowadays exercised by the government of the day or the judiciary in the name of the Crown. Two principal authoritative definitions are relied on by the courts today; that of Sir William Blackstone and that of Professor A.V. Dicey. From this we can see that the prerogative is inherent in and peculiar to the Crown, prerogatives are recognized by the courts, the rights and powers are residual: they cover areas over which Parliament has not enacted statutes and they can be limited by Parliament and the prerogative legitimises executive actions without the need for an Act of Parliament. The definitions give rise to a number of questions. On the one hand, the executive has too much power to exercise in the name of the Crown which leads to a problem of abuse of power. On the other hand, it makes the scope of the prerogative power ambiguous and it seems that the prerogative power is somehow in conflict and inconsistence with Acts of Parliament. Therefore, it is essential for the courts and Parliament to prevent the abuse of such powers through case law and enactment.

Since 1688, majority of the prerogative power has transferred to the executive. There were number of cases that the defendants sought for jurisdiction after the executive exercised the prerogative power in areas where no enacted statutes protected. Traditionally, as noted above, the courts had jurisdiction to decide whether a prerogative existed and, if so, its scope. Judges would not examine the merits of the exercise of the prerogative. In the case of Attorney General v de Keyser’s Royal Hotel Ltd (1920), the House of Lords ruled that where an Act of Parliament covers the same scope as a prerogative, the Act of Parliament prevails and the prerogative – if not expressly abolished – is placed is abeyance (effectively suspended). Accordingly, the government could not choose to use the prerogative to award a lesser amount of compensation for occupation of property in wartime than the amount provided for under the Defence of the Realm Acts. In Laker Airways v Department of Trade (1977), it was held that a prerogative – in this case the treaty-making power – could not be used to defeat a right granted under an Act of Parliament. In R v Secretary of State for the Home Department ex parte Northumbria Police Authority (1985), the Court of Appeal ruled that the Home Secretary had the power to issue weaponry to police forces under the prerogative. This applied even though no direct authority could be found for there being a prerogative ‘to keep the peace’ as the Home Secretary claimed. This was notwithstanding the Police Act 1964 which provided, inter alia, that such items could be issued following a request of the Police Authority and made no mention of the Home Secretary’s power to issue the items on his own initiative. R v Secretary of State for the Home Department ex parte Fire Brigades’ Union (1992), the House of Lords ruled that the Home Secretary had no power under the prerogative to amend the Criminal Injuries Compensation Scheme – itself set up under the prerogative – where an Act of Parliament provided for its amendment (even though the relevant provisions had not been brought into force).

In an important case of Council for Civil Service Unions v Minister for the Civil Service (1985), The Prime Minister, acting in her capacity as Minister for the Civil Service, issued an oral instruction under the Civil Service Order in Council 1982 (an order of the Privy Council authorising the use of the prerogative) banning continued membership of trade unions at GCHQ, the government’s communications headquarters – an ‘intelligence’ facility which collects signals intelligence from around the world. The union challenged this exercise of power, claiming that there was a breach of natural justice in the failure of the government to continue negotiations in an industrial relations dispute. The government, having lost in the High Court, pleaded national security in the Court of Appeal and won. The House of Lords upheld the decision of the Court of Appeal, ruling that the courts had no jurisdiction to intervene in matters of national security. It was shown that the courts had the jurisdiction to review (through judicial review proceedings) prerogative acts in the same manner as acts under an Act of Parliament. Also, the House of Lords ruled that while there was equal power to review, the courts would only review prerogative acts that did not involve matters of high policy, which were best left to be determined by the executive. Since the GCHQ case a number of further issues have been regarded as justiciable. For example, in the case of R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett (1989), it was held that the prerogative power to issue passports is reviewable.

There are two principal means by which Parliament may control exercises of the prerogative. First Parliament may decide to abolish the prerogative and place the relevant powers under statutory authority. Second, Parliament will call the government to account for its exercise of the prerogative. Parliament may also declare certain former prerogative powers to be unlawful and place them firmly within Parliament’s power. A recent example is the Treasure Act 1996 which abolished the prerogative to treasure trove. However, we shall see below that unless the prerogative is expressly abolished, it will remain as a source of power but one which cannot be exercised while a statute regulating the same subject matter is in force. Theoretically Parliament has ample powers to scrutinize exercises of the prerogative through such procedures as question time, debates and Select Committee enquiries. In practice, however, the extent of scrutiny is more problematic. By convention there are a number of matters that are immune from parliamentary questions. These include: matters relating to the appointment of ministers, dissolution of Parliament, judicial appointments, government contracts, national security, diplomatic relations, and issues governed by confidentiality. In relation to defence, there are precedents for not answering questions on details of arms sales, operational matters and the giving of military assistance to other states. Advice given by Law Officers of the Crown is also immune from questioning, as is the decision whether or not to prosecute taken by the Director of Public Prosecutions.

The Constitutional Reform and Governance Act 2010 provides for parliamentary scrutiny of treaties and a statutory basis for the civil service. The Parliament Act 2011 also brings the dissolution of Parliament under statutory authority, thereby removing the power of the Crown over the dissolution of Parliament. All reform of the prerogative, however, entails constitutional and legal challenges. It has also been seen in relation to the GCHQ case that the courts have developed a category of non-justiciable matters which protect the judges from encroaching on decision which, in the light of separation of powers, are within the proper sphere of decision of the democratically accountable executive.

It is common in all constitution that there will be a number of powers reserved to the executive. However, it must be controlled because the prerogative power would give rise to the problem of abuse of power and injustice. The prerogative power, in nature, is not consistent with the concept of democracy because it is not enough accountable to the citizen. Under the British constitution, without strict separation of powers, Parliament and the courts have the power to intervene the exercise of the prerogative power by the executive. However, the parliamentary control along with the judicial control over the exercise of prerogative power is not adequate. There is still a reservoir of power is not amenable to either controls.

A pointed a loaded pistol at B, insisting that B hand over the contents of her till. A believed that the pistol was not loaded. As B was emptying the till the pistol went off and B was wounded. A ran out of the shop, running in front of a car driven by C, who had to swerve to miss A. As a result C hit three children at a bus stop. One of the children died as result. Advise A of his criminal liability. What difference, if any, would it make to your advice if B had died from the wound?

Assuming that B is still alive, the prosecution will bring two criminal charges against A. The first charge is malicious wounding contrary to s.20 of Offences against the Person Act 1861. The second charge is assault occasioning actual bodily harm contrary to s.47 of OAPA 1861. The first charge will probably fail. The second will probably succeed. On the other hand, the prosecution will also bring a charge of murder for the child who was killed by C’s car at the bus stop. The charge will probably fail and A will be charged of constructive manslaughter. However, if B had died from the wound, the prosecution will bring charge of murder against A instead of causing grievous bodily harm and assault occasioning actual bodily harm. The charge will probably fail and A will be charged of constructive manslaughter.

In order to convict A in the first charge, the prosecution must prove both the actus reus and mens rea of malicious wounding contrary to s.20 OAPA. The actus rea is wounding: Moriarty v Brooks (1834) and Eisenhower (1983). A voluntarily pulled the trigger and subsequently wound B seriously. No evidence suggests that A was involuntary to do the act. The mens rea is maliciously doing the actus rea. It must be proved that A was aware that his conduct carried a risk of wounding or causing some harm, albeit not serious harm: Mowatt (1967) and Savage and Parmenter (1991). A believes that the pistol was not loaded. He does not desire the consequence of his act. Moreover, his intention was to frighten B in order to take the contents of the till. There is no direct intention to wound B. However, the jury are entitled to find that A intended to wound if they are sure that A was aware that wounding is virtually certain to result from his action: R v Moloney (1985), R v Hancock and Shankland (1986) and R v Woollin (1998). The virtual certainty test for mens rea should be applied here and both the objective test and the subjective test must be satisfied: R v Nedrick. Is grievous bodily harm virtually certain by pointing a gun to a person? Yes. A reasonable man would know pointing a gun to a person is very dangerous and will probably injury the person. Could A anticipate that grievous bodily harm is virtually certain that B will be wounded as a result of pointing the gun to her? It is hard to prove that A could anticipate the consequence because he truly believed that the pistol was not loaded. Therefore, the oblique intention test is fail. A has no oblique intention to do the act. On the other hand, the offence can also be committed recklessly. According to the case of R v G (2003), only subjective test is used for recklessness. Therefore, did A foresee death or grievous bodily harm as highly probable? The answer is argumentative. Henceforth, if the jury is not satisfied beyond reasonable doubt that A committed the actus reus of the offence with the requisite mens rea, A will probably be acquitted.

The second charge is Assault occasioning actual bodily harm contrary to s.47 OAPA. For this offence the prosecution must prove that the defendant committed an assault or battery and that the assault or battery caused actual bodily harm. The actus reus of assault is committed where the defendant causes another to apprehend the application of immediate unlawful violence: Fagan v Mpc (1979), Savage and Parmenter (1991), Venna (1975) and Ireland (1998). B was frightened because A was pointing a gun to B. The actus reus is satisfied. The mens rea is intention or recklessness on the part of John as to causing B to apprehend. A pointed the gun to B with the intention to frighten B to hand over the content of the till. The mens rea is satisfied. B’s injury is likely to amount to actual bodily harm: R v Miller (1954) and the A’s act of assault did cause the actual harm: R v Roberts (1971). Therefore, A will be guilty of assault in respect of B.

The child died. The prosecution will charge A for murder. This is committed where a person, intending to kill or intending to cause grievous bodily harm and in the absence of a defence, unlawfully kills another human being: R v Moloney (1985). The actus reus consists of causing the death and the chain of causation. A ran out of the shop, running in front of a car driven by C. His unlawful act caused death to the child. It is arguable that the car driven by C will break the chain of causation. However, but for A recklessly ran out of the shop, the child would not die. The ‘but for’ test is satisfied: R v White. C did not break the chain of causation. The actus reus is satisfied. The mens rea of murder required proof of an intention to kill or cause grievous bodily harm: R v Vickers (1957). A’s direct intent was to run away from the criminal scene. However, the jury are entitled to find that A intended to wound if they are sure that A was aware that wounding is virtually certain to result from his action: R v Moloney (1985), R v Hancock and Shankland (1986) and R v Woollin (1998). The virtual certainty test for mens rea should be applied here and both the objective test and the subjective test must be satisfied: R v Nedrick. Is death or grievous bodily harm virtually certain by running recklessly on the road? No, not every reasonable man would know running on the road recklessly could cause injury to somebody. Could A anticipate that death or grievous bodily harm is virtually certain that someone will be killed as a result of running recklessly on the road? No, he could not anticipate the child would die because he could not see there were three children at the bus stop. A may not have acted with the mens rea for murder. Therefore, his liability for manslaughter ought to be considered. Constructive manslaughter requires proof that A commits an unlawful and dangerous act which causes the death or another: R v Goodfellow (1986) and R v Newbury (1977) with the intention or recklessness to do the action. Clearly, running on the road is unlawful and dangerous and A foresaw a risk of death or serious harm but not that either consequence was virtually certainty to result. Therefore, A will probably be convicted for Constructive manslaughter.

If B had died from the wound, A will be charged for murder. However, as mentioned above, A did not have the intent to kill or cause grievous bodily harm to B, his major intention was to assault B. A cannot be convicted for murder because there were no direct and oblique intention to kill or cause grievous bodily harm. However, A will be convicted for Constructive manslaughter. Even though A had no direct or oblique intention to do the actus rea, recklessness is also enough for the mens rea in the offence of constructive manslaughter. Nevertheless, we cannot sure whether A foresaw death or grievous bodily harm as highly probable or not. Henceforth, if the jury is not satisfied beyond reasonable doubt that A committed the actus reus of the offence with the requisite mens rea, A will probably be acquitted.

‘While the so-called doctrine of promissory estoppel was developed to alleviate the unfair effect of the requirement for consideration, the doctrine now appears well placed as an alternative to consideration.' Discuss.

Before the doctrine of promissory estoppel was resurrected by Denning J in the case of Central London Property Trust Ltd v High Trees House Ltd (1947), the general rule is that pay...ment of a smaller on due day is not a satisfaction for a debt of a larger sum. Therefore, consideration must be provided to discharge the balance, if not the creditor can sue for the balance even if he had promised not to do so: Foakes v Beer (1884). However, the English common law and equity developed two exceptions of this rule in order to alleviate the unfair effect of the requirement for consideration. One of the exceptions is the doctrine of accord and satisfaction (Common Law), and the other is the doctrine of promissory estoppel (Equity). After the doctrine of promissory estoppel was reutilized, it has successfully alleviated the unfair effect of the doctrine of consideration in number of cases. However, the doctrine cannot be depicted as an alternative to consideration because the doctrine is not as flexible as the application of consideration and their nature and purpose are utterly disparate.

As a general rule in English law, a promise is only enforceable if it is supported by consideration. It raises a question that if A owe B a debt, B promise A to accept half of the debt in full satisfaction of the debt, can B sue for the balance because the promise does not provide any consideration for the promise? In Pinnells case (1602) which was reaffirmed in the case of Foakes v Beer (1884), it was held that part payment of a debt does not constitute good consideration for the discharge of the entire debt. However, the Foakes case is not a popular decision and has been subject to much criticism over time. Lord Blackburn in Foakes criticized the rule and recognized that there is indeed a form of practical benefit received when a creditor agrees to accept part payment. A promise had provided consideration as the promisor had received practical benefits: Williams v Roffey Bros. & Nicholls (Contractors) Ltd (1990). Therefore, it is unfair that a promise to accept part payment for the discharge of the entire debt is not enforceable whereas the practical benefit is operating. Despite the criticisms, in the case of Re Selectmove (1995), the Court of Appeal confirmed that if there is a promise to perform an existing duty in the form of services, the practical benefit of this nature will constitute good consideration. On the other hand, if the obligation is to pay money, then the practical benefit in this sense will not constitute as sufficient consideration. This indicated the doctrine of practical benefit has not been extended to part payment of a debt.

Surely, a rigid insistence upon consideration can lead to inequitable result. Therefore, the doctrine of promissory estoppel is developed to alleviate such injustice. In the case of Hughes v Metropolitan (1877), A landlord gave a six-month notice to a tenant, requiring him to carry out certain repairs. The tenant responded by inquiring whether the landlord wished to purchase his interest in the premises for £3,000. The landlord entered into negotiations for the purchase of the lease but, when these negotiations broke down, he sought to forfeit the lease because the tenant had not carried out the repairs within six months of his original notice. The House of Lords held that the tenant was entitled to equitable relief against forfeiture of the lease on the ground that the running of six-month period was suspended during the negotiations to purchase the lease and did not recommence until the negotiations broke down. The decision lay in obscurity for many years until it was resurrected by Denning J in the famous case in Central London Property Trust Ltd v High Threes House Ltd (1947), In this case, the plaintiffs let a block of flats in London to the defendants on a 99-year lease at an annual rent of £2,500. In 1940, the defendants discovered that as a result of the outbreak of war and the evacuation of people from London they were unable to let many of the flats. So the plaintiffs agreed to reduce the rent to £1,250. At the end of the war, the property market had returned to normal and the flats were fully let. The plaintiffs demanded that the defendants resumed payments of the entire rent from 1945 but the defendants refused to pay. It was held by Denning J that the agreement in 1940 was intended to be temporary and ceased to operate after the war. It raised another question here: Can the plaintiffs claim for the period of 1940 to 1945 according to the ratio decidendi of the Foakes case that part payment of a debt does not constitute good consideration for the discharge of the entire debt? Denning J held orbiter dictum that had the plaintiffs claimed for the period of 1940 to 1945, the promisor would be estopped from going back on his words even though the promise had not provided consideration to enforce the promise.

So, after the High Trees case, if A owes B a debt, B promises A to accept half of the debt in full satisfaction of the debt, can B sue for the balance even it is inequitable? The answer is that it depends on five elements which must be satisfied prior to the courts invoking promissory estoppel. The first is that there must be a clear and unequivocal promise or representation that existing legal rights will not be fully enforced: Hughes v Metropolitan Railway (1877). The second is that the doctrine can only be used as a defence and not a cause of action: Combe v Combe (1951). The third is that the representation or promise was intended to be binding and acted upon and was in fact acted upon: E. A. Ajayi v R. T. Briscoe (Nigeria) Ltd (1964). The forth is that it must be inequitable to allow the promisor to go back on his promise: D & C Builders Ltd v Rees (1966). The final is that promissory estoppel is merely suspensory, and that the promisor can resume his rights under the contract after giving reasonable notice of his intention to do so: Tool Metal Manufacturing Co. Ltd v Tungsten Electric Co. Ltd (1955). 

The doctrine of promissory estoppel may be poised to act as an alternative to consideration. However, that situation has not yet been realised. The exact scope of promissory estoppel is unclear. In particular, questions have been raised as to whether it can be extended to give rise to a cause of action, whether it can be applied where there is no existing legal relationship between the parties, the exact scope and meaning of its suspensory effect, and the extent to which the concept of inequitable conduct will affect the estoppel. In the case of Baird Textile Holdings Ltd v Marks & Spencer plc (2001), the Court of Appeal held that the alleged obligation on the part of Marks & Spencer to acquire clothing from Baird was insufficiently certain to found either a contractual obligation or a claim based on estoppel. The court agreed that the estoppel claim had no real prospect of success since English Law did not currently create or recognize the right contended for on these facts. Thus the reconsideration of the scope of the category or categories of estoppel by the House of Lords is still awaited.

Promissory estoppel is designed to alleviate the unfair effect of the requirement for consideration. According to the five elements of how it operates, the doctrine appears only in the cases where a rigid insistence upon consideration causes inequitable judgment. On the one hand, the doctrine may be poised to act as an alternative to consideration sometimes. On the other hand, because the exact scope of the doctrine is unclear and the application of the doctrine is not flexible, the doctrine is not easy to be poised to act as an alternative to consideration in any occasion. Therefore, I personally believe that it is fairer to say that the doctrine of promissory estoppel is just a subordinate option for the court to uphold justice. The doctrine can never have an extinctive effect to the doctrine of consideration.

On Monday, Arnold placed an advertisement in ‘The Daily Much’ which read ‘£10,000 Reward – for the safe return of Bessy, a prize winning Holstein cow’. A description of Bessy was given which included the fact that she was wearing a collar bearing her name and that she had left Arnold’s field with her sister cow, Clara. On Tuesday, Daniel, having reading the advertisement, set off to the countryside to search for Bessay and Clara. Daniel spent £100 on his railway ticket and £250 on a week’s accommodation. On Wednesday, Edwin, a neighbor of Arnold’s, found Bessy and wrote to Arnold that ‘£10,000 is not nearly a sufficient reward for a cow of his value – would you pay £15,000?’ Later that day, Bessy broke out of Edwin’s barn. Frank found her on Thursday and took her back to his farm. On Friday, Daniel found Clara and returned her to Arnold. Arnold refused to pay Daniel anything and decided to cancel his reward advertisement. He placed a small note on the door of the village shop announcing that no moneys were payable for the return of Bessy. Frank, noticing Bessy’s address on her collar took her to Arnold on Saturday. As Arnold was not in, he left her in Arnold’s field and returned home. Edwin, noticing Frank’s actions left a note at Arnold’s house claiming the reward. Advise Arnold.

Arnold has to be advised that whether he is under a contractual obligation to pay the reward of £10,000 either to Daniel, Edwin or Frank. In order to claim the reward, the party must prove that a valid contract was in existence between him/her and Arnold. To prove that there is a valid contract, the party must prove that there is an agreement, consideration and intention to create legal relations. However, the case focuses on the existing of a binding agreement which involves an offer followed by an acceptance. I would like to break the case down into several constituent issues by party to party with a view to determining whether or not a contract has been formed.

Firstly, we have to determine whether the advertisement placed by Arnold is an offer or an invitation to treat. An offer is an expression of willingness to contract on specified terms made with the intention that it shall be binding as soon as the offer is accepted. However, an offer must be distinguished from an invitation to treat. An invitation to treat is an expression of willingness to enter negotiation which leads to the conclusion of a contract at a later date. Generally, based on business sense, an advertisement is treated as an invitation to treat while it is likely a bilateral offer: Partridge v Crittenden (1968). But in the case of Carlill v Carbolic Smoke Ball Company (1893), the advertisement which was a unilateral offer requiring a stipulated act to accept was held to be an offer to the world at large. The advertisement posted by Arnold on Monday stipulated an act to accept the offer – safely return Bessy and clearly stated the amount of the reward. Therefore, it is a unilateral offer which is capable for being accepted. 

While there is an offer in existence, now we should see whether the performance of returning Clara by Daniel is an acceptance or not. In a bilateral contract, an acceptance is the performance of the stipulated act requested by the offeror. Any performance which is not specified by the offeror is not a valid acceptance. On Wednesday, Daniel returned Clara to Arnold. However, Arnold stated very clearly that only the person who ‘safely returns Bessy’ can claim the reward. Even though Daniel did suffer from detriment on the journey to look for Bessy, his conduct is not what Arnold requested. Therefore, his act did not constitute an unequivocal acceptance by conduct.

Now we see whether Arnold’s revocation of the offer is effective or not. In English law, to revoke the offer of a unilateral contract the offeror must use a method which reaches largely the same people as viewed his offer: Shuey v USA (1875). So, in order to revoke the offer, Arnold should place the announcement on The Daily Much where he posted the advertisement. However, Arnold posted the notification of revocation of the offer on the door of the village shop. Therefore, the revocation is more likely to be held to be not effective. The offer is still effective and capable for being accepted.

An acceptance is an unqualified expression of assent to the terms purposed by the offeror. However, if a purported acceptance seeks to introduce a new term to those proposed in the offer, it is not an acceptance but a counter-offer: Hyde v Wrench (1840). A counter-offer terminates the original offer and make it incapable for being accepted. While Edwin found Bessy on Wednesday, he did not return it to Arnold and asked Arnold to pay an extra £5,000 for the return of Bessy. Edwin was actually making a counter-offer which killed off the original offer. Suppose that he compromise for the original price at a later stage, he has become the one who made the offer. Henceforth, there is no contract concluded between Edwin and Arnold.

In the case of Gibbons v Proctor (1891), the claimant successfully claimed for the reward in ignorance of the offer. However, in English law, an offer is only effective when it is communicated to the offeree. A reward cannot be claimed if there claimant who had performed the act of acceptance was unaware at the time that a reward was being offered. In the case of R v Clarke (1927), the court held that a person who, in ignorance of the offer, performed the act or acts requested by the offeror was not entitled to sue as on a contract. Another recent case which is relevant here is the case of Day Morris Associates v Voyce (2003) which the ratio decidendi is that conduct will only amount to an acceptance if it is clear that the offeree did the act in question with the intention of accepting of the offer. On Friday, Frank returned Bessy to Arnold in ignorance of the offer. The fact here shows that he had not read the advertisement and there was no offer in his mind while he was safely returning Bessy. Therefore, there is no contract concluded between Frank and Arnold. Frank is not entitled to claim for the reward.

Finally, the last question is whether Edwin is entitled to claim the reward or not. Edwin may apply the case of Stevenson v McLean (1880) where the ratio decidendi is that a request for more information did not indicate that the original offer is not acceptable but instead the offeree is merely postponing his decision until more information is provided. He may argue that his statement made on Wednesday was not a count-offer but a mere inquiry so that the original offer was still open to acceptance. Therefore, a contract concluded while he wrote the note to claim for the reward. However, Edwin was not the one who returned Bessy. It was Frank who returned Bessy. Edwin did not do the act requested by Arnold in order to accept the offer. No contract was concluded between Edwin and Arnold. Hence, Edwin cannot claim the reward.

Arnold is not liable contractual obligated to pay the reward of £10,000 either to Daniel, Edwin or Frank because there was no contract concluded.

‘The doctrine of precedent has a dual function; it provides an image of certainty, consistency and clarity while allowing the common law to continually adapt and develop.' Discuss.

The doctrine of judicial precedent is the heart of the common law system. It is based on the principle of stare decisis. The doctrine of stare decisis is that a court makes a decision in a case then any courts which are of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. This provides certainty, consistency and clarity. The statement suggests that the doctrine of judicial precedent also provides flexibility to allow the common law to continually develop which functionally solves the age-old problem in law – balancing the need for certainty with the desire for the law to be flexible. By looking at how the judges decide cases and the exceptional cases which the judges depart from precedent, we will see to what extent the statement is correct.

The doctrine of stare decisis provides certainty, consistency and clarity. On the other hand, it also limits flexibility to allowing the common law to continually develop. By reason of contributing effectively to developing the law, the Practice Statement 1966 was issued by Lord Gardiner LC. The House of Lords (Now the Supreme Court) has been allowed to depart from its own previous decision when it ‘appears right to do so’. 

Two years after the Practice Statement 1966, the House of Lords overruled their previous decision in Conway v Rimmer (1968) on a question of the discovery of documents for the very first time. In Miliangos v George Frank (1976), the House of Lords departed from the decision of the previous case of Re Havana (1961) by allowing damages to be awarded in any foreign currencies if they are specified in the contract. Although the provision in the statement was criticized as the House might have the tendency to abuse its powers by making law and not in accordance with the concept of Parliamentary Sovereignty, the House rarely departs from their previous decision and no case substantiate the criticism.

On the other hand, the Court of Appeal is still bound to follow decisions of the House of Lords and the interior courts are bound to follow their decisions. However, according to the principle given in the case of Young v Bristol Aeroplane Co Ltd (1944), the Court of Appeal is allowed to depart from its own previous decision if it falls with the recognized three categories of exception. Firstly, the Court of Appeal can choose between its own conflicting decisions. Secondly, if its own previous decision has been overruled expressly or impliedly by the House of Lords, it need not be followed. Thirdly, the court is not bound by its own decisions found to have been made per incuriam. 

However, In the case of Davis v Johnson (1974), Lord Denning of the Court of Appeal attempted to avoid this rule. In the Davis case, the Court of Appeal allowed the victim of domestic violence to appeal by departing from previous decisions where injunctions had not been awarded in similar situations. In Miliangos v George Frank (1975), the Court of Appeal departed from the House of Lords decision of Re: Havana (1960) by awarding damages in foreign currency. When the case went up to the House of Lords, their Lordships held that the Court of Appeal had acted incorrectly, but nevertheless proceeded to depart from Havana. The House of Lords were on number of occasions, disapproved the manner of which the Court of Appeal seemed to ignore the directives of the practice direction and the fundamental doctrine of stare decisis.

However, judges do have many ways to depart from precedent. They can do it by distinguishing the material facts of the previous and the present cases. A superior court may also reverse the decision of an inferior court, and a superior court can also overrule the decisions of an inferior court. Moreover, with the enactment of the European Community Act 1972 and also the Human Rights Act 1998, Community law now prevails over domestic laws, and the courts were directed to comply with the Community laws and Convention rights. Under s.3 (1) of the Human Rights Act 1998, judges have a duty to strive to find a possible interpretation compatible with Convention rights. Under ordinary method of interpretation, a court may depart from the language of the statute to avoid absurdity. Undoubtedly, a court must always look for a contextual and purposive interpretation. Where the statute is inconsistent with Convention rights, certain courts may make declaration of incompatibility (s.4 HRA 1998). In the view of Lord Steyn in R v A (2001), a declaration of incompatibility should only be a measure of last resort.

Various later cases also show a positive development in English domestic law through its judicial decisions. In the case of R v R (Marital rape) (1991), the House of Lords abolished a 250 year-old immunity for the husbands from criminal liability for raping their wives. Their lordship justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to act in order to remove from the common law a fiction which had become unacceptable. This decision was an example of the ability of the common law to evolve ‘in the light of changing social, economic and cultural development. 

In another case of Airedale NHS Trust v Bland (1993), the question raised was whether a life support machine should be switched off when a person was in a persistent vegetative state. Although it contravenes the Convention rights (right to live), the House of Lords allow the termination. Similarly, in Re A (2000), pertaining to a conjoined twin, the House of Lords allowed the operation to proceed as recommended by the hospital despite objections from the parent. The House of Lords took into consideration the state of law on murder and the defense of necessity, and decided that a balance had to be struck on some very difficult issues.

The House of Lords does develop English domestic law through its judicial decisions. To a large extent, it does prove that there are positive developments of allowing the common law to continually adapt and develop. As stated by Lord Goff :

‘while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.'

The doctrine of judicial precedent is a pragmatic system which achieves a balance between certainty and flexibility. Majority of judges follow the decisions of the previous cases. It provides not just an image of certainty, consistency and clarity, but also some degree of hierarchy which prevents the judges making arbitrary decisions based on their moods and favours. On the other hand, the doctrine has many gaps to permit judges departing from previous decisions. This allows the judges to overrule the law which are anachronistic in pursuit of development and preserving justice.

Critically evaluate A.V. Dicey’s exposition of the “Rule of law” and its continuing relevance today.

In Introduction to the Study of the Law of the Constitution, Professor A.V. Dicey offered a neutral description of the rule of law. He argued that the rule of law has three aspects. Firstly, no one c...an be punished except for a distinct breach of law. Secondly, irrespective of rank, everyone is equal and subject to one law. Thirdly, courts are the better protectors of human rights and freedom. However, the principles are controversial and criticized by other jurists. On the other hand, in today’s world of increasing terrorism, due to national security and the evolution towards greater equality in the development of law, the Parliament may somehow contradict the orthodox theory by legislating and the courts may make decisions against the theory. By evaluating the doctrine of the rule of law and illustrating the challenges posed to the traditional theory, we will see how the theory is relevant today.

The first principle of the rule of law is no one can be punished except for a distinct breach of law. It was designed to protect the individual from any secret or arbitrary laws because secret or arbitrary laws are incapable of justification. The element also implied that no retrospective penal law can be legislated. If such law is imposed, the individual is placed in the position where his conduct was lawful at the time of his action but, subsequently, he is convicted as if his early conduct was unlawful. This is contrary to the first element – No man can be punished except for a distinct breach of law. Wright J in Re Athlumney stated

‘…unless that effect cannot be avoided without doing violence to the language of the enactment…it ought to be construed as prospective only.’

The courts employ the presumption of statutory interpretation against retrospectivity.


In Waddington v Miah (1974), the House of Lords denied retrospective effect in relation to criminal offences by interpreting the Immigration Act 1971 in a different manner with the Parliament. In Burmah Oil v Lord Advocate (1965), the House of Lords awarded compensation to the claimant for the destruction of oil installment during wartime. Meanwhile, the Parliament speedily enacted War Damage Act 1965 in order to nullifying the decision. This illustrated that the court cannot uphold the rule if Parliament expressly provided for retrospectivity.


However, the court may interpret for retrospectivity if the rule was anachronistic or absurd due to evolution towards greater equality. In the case of R v R (1991), the House of Lords argued that the rule against the liability of rape within marriage was anachronistic then convicted the defendant. The defendant appealed to the European Court of Human Right on the basis that it infringed Article 7 of the Convention, which makes retrospectivity unlawful. The Court of Human Right rejected his argument and ruled that sweeping off the immunity of husbands from the liability of rape is an evoluation towards great equality.


Notwithstanding, since 2001, plenty of Acts which contradict the first element of rule of law passed in order to protect the nation from terrorism. For example, the Anti-Terrorism, Crime and Security Act 2001 provides for internment without charge or trial for suspected of links with terrorism. The Terrorism Act 2006 which provided 28 days pre-trial detention. These Acts contradict to the rule that no one can be punished except for a distinct breach of law.


The second principle emphasizes everyone, including the government, irrespective of rank, shall be subject to the same law and courts. This element is interpreted to be misguided and facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society, there are actually exceptions such as the Crown, police, Members of Parliament. The Crown may exercise prerogative powers which may defeat the rights of individuals. The police have powers over and above the citizen. Members of Parliament have immunity from the law of defamation. One of the jurists who criticized on Dicey’s second element of the rule of law is Sir Ivor Jennings. He points out that no citizens are absolutely equal:

“…pawnbrokers, money lenders, landlords…and indeed most other classes have special rights and duties.’

He also ruled out that Dicey’s interpretation of the principle is too narrow. A better interpretation should be – everyone is equal and subject to the same law, the executive and legislative power may have immunities, but in the sense they should be accountable for their actions


However, recently, there are several controversial Acts of Parliament which seem to have contradicted the second principle of the rule of law enacted during the decade. As mentioned, the Anti-Terrorism, Crime and Security Act 2001 provides for internment without charge or trial for non-British terrorist suspected of links with international terrorism. This is a specified law against the non-British people which contradict the second principle of the rule of law. We will see how the courts protect the human right from unjust act in the evaluation of the third principle.


Dicey believes that the courts are the better protectors of human right. The rights to liberty and to assembly are determined by the courts in the course of ordinary legal proceedings. In spite of enjoying rights to liberty such as freedom of speech, citizens must understand all the legal restraints on freedom of expression. Like the law relating to sedition, to race hatred speech, to support for terrorist organizations, the law of defamation and so on, citizens may be charged of breaching the statutes from the Acts of Parliament. However, since 1965 British citizens have had the right to apply for remedies under the European Convention on Human Rights if they think that the decisions made under domestic law are unjustified. Nevertheless, most of the Convention rights are enforceable before the domestic courts. In order to see whether the courts are really the best protectors of rights from, we will examine the following cases and judicial reviews.


In an early case of Entick v Carrington (1765), the Court of common Pleas held that there was no lawful authority for the warrant and the officers entering the defendant’s property were trespassing. The decision successfully protected the defendant’s right to privacy. However, in the Rossminster case (1980), the House of Lords rejected Lord Denning’s view in the Court of Appeal that a warrant must particularize the specific offence which is charged as being fraud on the revenue because he believed that the requirements of the statute were met.


In Malone v United Kingdom (1984), the Court of Human Rights ruled that the United Kingdom had violated Article 8 of the Convention (The right to privacy) in reversing the earlier decision in Malone v Metropolitan Police Commissioner which ruled that no trespass had committed by the police even they had intercepted the defendant’s telephone calls. In response the Parliament passed the Interception of Communications Act 1985 which authorizes the interception on a statutory basis. This indicated that the Court of Human Rights was capable to protect rights and freedom.


The following case is a judicial review relating to the Anti-terrorism Crime and Security Act 2001 which was mentioned. In A v Secretary of State for the Home Department (2004), the court concerned the power conferred on the Home Secretary to detain foreign terrorist suspects that the suspects could not be put on trial because much of the evidence against them was acquired. Moreover, they could not be deported because deportation would violate Britain’s international obligation. The House of Lords ruled that the power violated Article 5 (The Right to Liberty) of the European Convention on Human Rights. The court successfully protected human rights and freedom from an unfair Act. Therefore, under the Human Rights Act 1998, the courts are not hesitated to protect the human rights whereas the Parliament is eager to protect the commonweal.


To a large extent, Dicey’s principles of the rule of law are accurate even though they are not exhaustive and uncriticised. The rule of law is very important for people to understand and conform to. However, although the courts are eager to protect the rule of law, the theory is theoretical and is difficult to achieve in practice. Especially the role of Parliament, due to National Security and commonweal, enactments which contradict the rule of law are legislating nowadays.