The Supreme Court gives valuable guidance on the precedent value that the courts of England and Wales should give to decisions of the Judicial Committee of the Privy Council.
In this important decision which clarifies the precedent value of decisions of the Privy Council, the Supreme Court explains that its decisions are generally not binding but greatly persuasive. However, the Supreme Court granted the Privy Council the power, in certain defined circumstances, to decide that an earlier decision of the Supreme Court/House of Lords or Court of Appeal was wrong and direct domestic courts to treat the Privy Council's decision as representing the law of England and Wales.
The Privy Council was not a court of any part of the UK. However, it almost always applied the common law, and either all or four of the five Privy Counsellors sitting on the appeal would almost always be Supreme Court justices. Privy Council decisions are not normally binding on any judge of England and Wales and may not override any decision of a court of England and Wales which would otherwise represent a precedent which was binding on that judge.
However, any Privy Council decision, at least on a common law issue, should normally be regarded by any judge of England and Wales as being of great weight and persuasive value. The Privy Council should regard itself as bound by any House of Lords or Supreme Court decision, at least when applying the law of England and Wales.
Regarding whether the rule that a court should not follow a Privy Council decision if it was inconsistent with a binding decision was absolute, or could be disapplied, it was more satisfactory that the rule should be absolute.
However, that rule was subject to one important qualification. The Privy Council's Practice Direction 3.1.3 and Practice Direction 4.2.2 required an appellant to say whether an appeal would invite the Privy Council to depart from a House of Lords or Supreme Court decision. That should be expanded to apply to Court of Appeal decisions. Where the Practice Directions applied, the registrar of the Privy Council should draw the attention of its President to the fact that there might be such an invitation. The President could take that into account when deciding on the constitution of the panel to hear the appeal and, provided that the point was one of English law, the Privy Council panel members could not only decide that the earlier decision was wrong but could also expressly direct that domestic courts should treat its decision as representing the law of England and Wales.
NB: Regarding Scotland, the traditional view was that, subject to possible exceptions, House of Lords judgments in English appeals were at most highly persuasive. It was therefore impossible for Privy Council decisions on English law to have greater authority than that. However, the Supreme Court stated that it was likely that precisely the same principles would apply in Northern Ireland as in England and Wales given that the common law applied in the same way.