Lionel and Gordon both seem to me to be running together the question whether the Lords can act "prospectively" with the question whether they can act "legislatively". But these are very different issues. Or where is it laid down that prospective decision-taking should be confined to legislatures?

Thus, in their judicial capacity their Lordships are limited to the induction of the relevant principles from the previous cases and the application of those principles to the facts of the case before them, so as to deduce its resolution in favour of the appellant or the respondent.

A rather narrow view of the lords' function! Surely most "leading cases" go further, and are "leading" for precisely that reason. Was Kleinwort Benson merely an exercise in induction? Was Woolwich?

To purport to lay down what will be invariably satisfactory in the future (though properly continuing to let past transactions depend on the facts of each case) goes far beyond these limits. Yet that is what Lord Browne-Wilkinson did in O'Brien [1994] A.C. 180, at 196; and so I have always taught that, being pretended legislation, what Lord Hobhouse calls "Lord Browne-Wilkinson's ... carefully crafted scheme" could not be part of the ratio decidendi of O'Brien.

I would imagine that both lords knew perfectly well that what they were saying was not ratio. Indeed, they may only have been happy to speak in such specific terms BECAUSE they knew the detail would not bind lower courts. This seems more plausible than calling B-W's opinions "pretended legislation".

I submit such pretensions should cause no surprise because (as I tried to argue in [2000] R.L.R. at 200 n.65) the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 is itself so tainted and perhaps may be seen as the root of the evil.

The root of which evil? Of giving pronouncements of the house of lords too much weight, or too little?

Steve Hedley

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