Restitution Discussion Group Archives
| Sender: |
Gordon Goldberg |
| Date: |
Sat, 10 Nov 2001 16:48:42 |
| Re: |
Etridge and the Constitution |
I beg the pardon of members of the list for my despatch,
which immediately and accidentally preceded this and was premature. The
numbered paragraphs herein are my replies to Steve's answers to my propositions,
which he has reproduced in the "Earlier Original Message" appearing below.
The numbers correspond to the bold figures which I have inserted in that
message.
1. Prospective decision making is avowedly to change
the law. A change in the law can be made only by an Act of Parliament,
not by the House of Lords acting alone, whether judicially or otherwise
- Beamish v. Beamish (1861) 9 H.L.C. 274 (I.), 338-339.
2. In [2000] R.L.R. at 200 n.65 I have argued that the
decision in Kleinwort Benson is unconstitutional. In my e-missive
(To: Hector MacQueen Date: 15 August 1999 17:54
Subject: Re: Payments under Protest) I suggested a traditional reason
for the decision in Woolwich.
3. I respectively concur with what Allan has written
in the "Later Original Message" appearing below.
4. The evil is of giving pronouncements of the House
of Lords weight: both too little, in allowing them without restriction
to be overruled by the House's later decisions; and too much, in allowing
the later pronouncements to change the law authoritatively laid down by
the House's prior decisions and so to enact legislation. After all, quite
apart from the Practice Statement, the Lords Spiritual and Temporal
in the Queen's Court of Parliament assembled (like one of H.M. courts
of justice, insofar as it is not bound by statute or by the decision of
a tribunal higher in the hierarchy) are free to correct the mistakes of
themselves or their predecessors (Midland Silicones v. Scruttons
[1962] A.C. 446, 476-7), but not simply to give effect to mere changes
or differences of opinion (Beamish v. Beamish above; Farrell
v Alexander [1976] Q.B. 345, 369). Mistakes may consist of the
overlooking of established principles (Midland Silicones, above,
at 477-8) or of authorities, whether statutes (London Street Tramways
v L.C.C. [1898] A.C. 375, 380-1) or cases (Nicholas v Penny
[1950] 2 KB 466). Cf. "per incuriam" in Young v Bristol
Aeroplane Co [1944] KB 718 and "Dormitat Homer" in Horace's
Ars Poetica 359, translated in Farrell, above.
-----Later Original Message----- under the usual terminology any dictum
[statement of law unnecessary for the decision of the particular case]
is non-judicial: prospective overrulings are egregious
as it is the legislature which is authorized
to lay down rules for future behavior. a considered dictum is an attempted
usurpation, and if later respected would be judicial legislation
however, because legislating is beyond
the court's authority, the dictum does not have the force of law, and
under the usual ideas of stare decisis, a later court is not bound by
the dicta of an earlier i wouldn't get a lot of comfort from that if the
later court happens to have the very judges who enthusiastically 'legislated'
in the prior case
so although legitimate judicial holding
and illegitimate dicta differ in respectability for later courts: they
are, from the gutter perspective of clients, the same in that each will
have whatever effect a later court in fact gives it.
-----Earlier Original Message----- 1. 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?
2. 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?
3. 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".
4. The root of which evil? Of giving pronouncements
of the house of lords too much weight, or too little?
Steve Hedley
===================================================
telephone and answering machine : (01223)
334931 Christ's College Cambridge CB2 3BU
From: Allan Axelrod
Date: 09 November 2001 16:51
Subject: Re: [RDG:] Etridge and the Constitution
From: Steve Hedley
Date: 09 November 2001 11:11
Subject: [RDG:] Etridge and the constitution
Legislation (unless by an Act of Parliament,
agreed to by the Commons and the Crown, as well as by their Lordships)
is ultra vires the House of Lords - Beamish v. Beamish (1861)
9 H.L.C. 274 (I.) at 338-339.
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.
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 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.
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
messages : (01223) 334900
fax : (01223) 334967
===================================================
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