Two requirements must be met if a precedent is to be binding: Firstly, it must be a ratio decidendi statement where the judgments contain findings of fact, both direct and inferential. Secondly statements of law must be applied where the judge will state the principles of law applicable to the case.
In an attempt of ensuring certainty does not result in rigidity The House of Lords is uniquely placed to develop English domestic law through its judicial decisions. Since a rigid adherence to precedent may lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court. As Lord Goff stated ‘while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.’Thus, in view of the increasing judicial criticisms of the practice of stare decisis, in particular, it was said that the rule did not produce the desired certainty in the law, and that it sometimes produce absurd judgment, the Lord Chancellor issued a Practice Direction in 1966 where the House of Lords were allowed to depart from their own previous decisions when it appears right to do so.
In conclusion Judges have a great deal of flexibility in applying precedent. This is done by distinguishing one precedent from another. Where a judge, for example, considers the material facts of a present case to be sufficiently different from an earlier case, he is distinguishing the case and may refuse to follow the earlier case. An advantage of distinguishing for example is that it creates a measure of certainty in the law and allows lawyers to advise clients on the probable outcome of a case. There is opportunity for the law to develop and change with society. If ‘like cases are to be treated alike’, the on that basis, the law reflects consistency and clarity. On the other hand an associated disadvantage is the fact that the House of Lords is reluctant to use the Practice Direction (that it need not follow its own previous decisions) and the fact that the Court of Appeal is bound by its own previous decisions can lead to rigidity which can create injustice in an individual case.
(b) How do the Courts approach the task of the interpretation of Statutes and how far are the judicial approaches capable of achieving the correct interpretation?
In assessing the Courts approach of interpreting statutes it is imperative to acknowledge once a Statute or other legislation is enacted, it is the law and the Courts must follow it. There is no problem in this if the legislation is clear and unambiguous. But in instances where this is not the case it is often necessary, therefore, for a piece of legislation to be interpreted by the Courts referred to as Statutory Interpretation. Therefore there are either internal aids to interpretation which are found within the act itself or external aids which include things such as dictionaries, the interpretation Act 1978, EC directives etc…
In the case of Pepper -v- Hart (1993), the House of Lords decided that to aid interpretation the Courts can take reports of Hansard into account in respect of debates, questions asked in the house and other matters appertaining to ambiguous legislation. In addition to the several aids that Judges have to assist them, the Courts follow a number of presumptions. So, the presumption will stand unless it can be contradicted by express legislation, and the burden of proof is upon the party seeking to disapply such presumption. These presumptions apply whether the legislation is primary or delegated and may include for example; the presumption of the construction of penal provisions, if the ambiguity or doubt applies to a criminal or penalty provision, then the individual will get the benefit of the doubt. Also, the presumption of Retrospective Effect: This is against a legislation being back-dated. Thus it can be seen that there are various aids and presumptions that assist Judges in trying to find out what a piece of legislation means. But the above does not help if the words of a statute are misleading or liable to different meanings. The way in which Judges cope with this lies in the rules of statutory interpretation which constitute possible approaches, with the judge choosing the most appropriate in the circumstances and include the following; The Literal Rule: This means that the Court will apply the ordinary and natural (literal) meaning of the word/s used. They will interpret the word/s literally. The view, here, is that it is Parliament who has passed the Act and what Parliament has enacted the Courts will follow, even if the result appears to be one which Parliament did not intend. .For example in the case of Inland Revenue -v- Hinchy (1960) where the House of Lords had to construe the meaning of a provision in one of the Finance Acts which imposed a penalty of "treble the tax that ought to be charged under this Act" against anyone incorrectly completing a tax return. It is likely that Parliament intended the penalty to be three times the excess owed. However, on a literal interpretation, "the tax which ought to be charged under this Act" was the total amount of tax payable for the year and that is what the House of Lords found. To avoid ambiguity, legislatures often include "definitions" sections within a statute, which explicitly define the most important terms used in that statute But some statutes omit a definitions section entirely, or (more commonly) fail to define a particular term. The plain meaning rule attempts to guide courts faced with that turns on the meaning of a term not defined by the statute, or on that of a word found within a definition itself.
Justices normally impose an absurdity limit on this rule, which states that a statute cannot be interpreted literally if it would lead to an absurd result. This is sometimes termed the soft plain meaning rule, where the statute is interpreted according to the ordinary meaning of the language, unless the result would be cruel or absurd as illustrated in , (1892). Secondly Judges have often mitigated the strict literal approach by calling into play the "Golden Rule". Where there is ambiguity in that the literal interpretation results in a consequence so absurd that Parliament could not possibly have intended it, the Court can choose a secondary meaning, one that has the "least absurd or repugnant effect.” It sometimes happens, in rare cases, that a judge will apply the Golden Rule where the statute has only one literal meaning. Thirdly is The Mischief Rule, which is the oldest of the Rules of Interpretation and was applied in Heydon's Case (1584), when the Judges laid down four things to be considered when interpreting a Statute:- (i) what the common law was before the act (ii) the mischief that the statute sought to remedy (iii) the remedy appointed for that mischief and (iv) the true reason for the remedy. Thus, need to find out what was the state of affairs that the statute sought to remedy and then interpret the statute in that light. Fourthly The Eiusdem Generis Rule: which is latin for "of the same type as" says: "Where two or more specific words are followed by a general term, the general term is to be interpreted in the light of the preceding specific terms if they form an identifiable class"
In conclusion in assessing how far the judicial approaches are capable of achieving the correct interpretation one of the associated difficulties over Statutory Interpretation is that the Court has power to interpret the particular piece of legislation according to any particular rule that it wants! Traditionally the courts have favoured the Literal Rule but this has caused criticism in that it looks only to the form of the Act and not the spirit behind it. Lord Denning, for example has said: "We sit here to find out the intention of Parliament and of Ministers and to carry it out, and we do this better by filling in the gaps and making sense of the enactment." Lord Denning has made no secret of the fact that he favours the "Mischief Rule" approach. However, Lord Simmons, in the House of Lords, has said that "if a gap is disclosed, then the remedy lies in an amending Act", indicating that it is up to Parliament to say what it means. These two approaches - the rigid approach and the flexible approach are respectively called "the literal approach" and the "purposive approach". The European system favours the latter.
(c) To what extent has membership of the EC restricted the freedom of the Courts as regards statutory interpretation?
In assessing the extent to which membership of the EC has restricted the freedom of the courts in relation to statutory interpretation it is imperative to point out that EC legislation is impinging upon our nation. At present, EC law has superiority to our own national laws and takes precedence over it in matters of community law. The way in which community law may restrict the freedom of the courts in interpreting statutes can be specifically shown since national courts must follow EC law where it applies. Thus where there is ambiguity in a piece of European legislation the national courts can not interpret that piece of legislation. Under Article 144 of The Treaty of Rome, only the European Court can interpret EC legislation. If our Courts, therefore, come across a piece of EC legislation that needs interpreting, then they have to remit it to the European Court for a ruling on its meaning.