The Supreme Court will hear the appeal in R (Jwanczuk) v Secretary of State for Work and Pensions (UKSC/2023/0152) on 11 and 12 March 2025. One of the issues is the circumstances in which courts in England and Wales may depart from decisions of appellate courts in Northern Ireland and Scotland regarding laws of inter-jurisdictional operation (that is, laws passed by the Westminster Parliament that apply throughout the UK, or where identical or materially similar laws have been enacted in multiple jurisdictions). On one hand, the classical exposition of stare decisis is that it operates vertically, such that decisions by extra-hierarchical courts are never binding. But if stare decisis is concerned with predictability and enabling the public to legitimately rely on past decisions in carrying out their affairs, those aspirations would not be met if the same provisions were given two different meanings depending on whether one is north or south of the Tweed (or if one is to the east or west of the Irish Sea in Great Britain or Northern Ireland).

The last time that this issue attracted judicial discussion by the House of Lords or Supreme Court was in Abbott v Philbin [1961] AC 352. But the issue about how first instance and appellate courts in one system should treat decisions of the same courts in another system about laws of inter-jurisdictional operation is not unique to the UK. Since 1961, the apex courts in Australia and Canada have had to grapple with this very issue and have taken a different approach to Abbott. This post argues that the Supreme Court in Jwanczuk may find it illuminating to consider the approach taken in other common law jurisdictions.

The issue in Jwanczuk

The appeal in Jwanczuk concerns the bereavement support payment (BSP), which is paid to a person after their spouse passes away to assist with the additional cost associated with bereavement. Under ss 30 and 31 of the Pensions Act 2014 (2014 Act), one of the conditions for a person to receive BSP is that the deceased must have, for at least one tax year, paid national insurance contributions (NICs).

Daniel Jwanczuk applied for BSP after the death of his wife, Suzzi. Suzzi suffered from a condition that rendered her severely disabled. BSP was refused because Suzzi never paid NICs. Jwanczuk claimed that the absence of an entitlement to BSP in cases where the deceased spouse had been unable to work because of their disability constituted a breach of article 14 of the ECHR.

Two years before Jwanczuk was heard in the High Court of England and Wales (EWHC), the Northern Ireland Court of Appeal (NICA) considered whether materially identical provisions in ss 29 and 30 of the Pensions Act (Northern Ireland) 2015 (2015 Act) constituted a breach of article 14. In O’Donnell v Department for Communities [2021] NI 490, NICA held that the contribution condition discriminated against a person on the basis of their disability and the discrimination was ‘manifestly without reasonable foundation’. The Court held that an exception should be read into the legislation under the interpretative obligation in s 3 of the Human Rights Act 1998, such that ‘the contribution condition [in the 2015 Act] is to be treated as met if the deceased was unable to comply with [paying NICs] throughout her working life due to disability.’

In Jwanczuk [2022] EWHC 2298 (Admin), Kerr J considered that ‘NICA’s decision, persuasive as it is, does not formally bind this court’ and that he must ‘consider the arguments afresh’: at [75]. However, he added at [47] that ‘[h]uman rights should if possible have the same content throughout the UK’ and that, ‘[i]f O’Donnell is not distinguishable, I would not depart from it unless persuaded that is [sic] clearly wrong, which I would find only with great diffidence.’ He considered that O’Donnell was decided on materially the same evidence as was before him: at [95]. Mr Justice Kerr agreed with and adopted the reasoning of NICA and held that the contribution condition in the 2014 Act should be read as including an exception in substantially the same terms as adopted in O’Donnell.

On appeal in Jwanczuk [2023] EWCA Civ 1156, the Secretary of State for Work and Pensions submitted that Kerr J erred in deciding that, unless O’Donnell was distinguishable, he should only depart from it if it was ‘clearly wrong’. The England and Wales Court of Appeal (EWCA) rejected this submission and held that Kerr J did not err in this regard: at [50]. It held that courts of one jurisdiction should follow the decisions of courts of another jurisdiction, even if the later court would have decided the case differently, unless there are ‘sufficiently compelling reasons’ to not follow it: at [43]–[44], [51]. It explained that the ‘importance of securing uniformity in the interpretation of a statute applying throughout the UK’ demands ‘something more … than the usual respect which is paid as a matter of comity to a court of co-ordinate jurisdiction’: at [44]. It held that the EWHC ‘should be even slower than [the EWCA] to reach a different conclusion from an appellate Court in Scotland or Northern Ireland on an identical issue about the meaning or effect of UK legislation’: at [49].

The UK approach

The rule discussed by EWCA has its roots in Abbott. That case concerned the question of the year in which the value of an option should be assessed for the purposes of income tax. The Inner House of the Court of Session in Scotland (CSIH) held in Forbes’ Trustees v Inland Revenue Commissioners [1958] SC 177 that it was in the year in which the option was exercised. When the same question came before EWCA in Abbott v Philbin [1960] Ch 27, it was submitted that the value should instead be assessed in the year that the option was granted. Lord Evershed MR, writing for the Court, opined that Forbes had been ‘severely and, if I may say so, by no means ineffectively impugned both in the court below and in this court’ and that he had various ‘difficulties’ and ‘doubts’ about the CSIH’s reasoning and conclusion: at pp 44–48. His Lordship acknowledged that the EWCA is not bound to follow CSIH decisions but it would not be ‘right’ to ‘decide those questions in a sense diametrically opposite to the sense which appealed to the Scottish judges’: at p 49. To do so would lay down law that is ‘completely opposite to the law which was applied, on exactly the same statutory provisions, north of the border’: at p 49. He considered that it was the ‘duty’ of EWCA to follow the Scottish decision ‘unless there are compelling reasons to the contrary’ whilst expressing the doubts that they have.

On appeal, the House of Lords overruled Forbes but expressly approved the course taken by EWCA. Lord Reid observed that EWCA ‘very properly followed the decision of [CSIH] … it is undesirable that there should be conflicting decisions on Revenue matters in Scotland and England’: at p 373. Lord Simonds likewise observed that the EWCA ‘took the proper course’ and stated that the EWCA ‘were constrained to decide this case in favour of the Crown in deference to the decision of the Court of Session in Forbes’: at pp 367–368.

Since Abbott, English courts have developed a practice of following decisions in other jurisdictions unless there are ‘compelling reasons’ to warrant departure. Secretary of State for Employment and Productivity v Clarke Chapman & Co [1971] 1 WLR 1094 is another case where all three judges on the EWCA expressed ‘doubts’ and ‘difficulties’ with a decision of the CSIH regarding a statute that applied in both England and Scotland: at pp 1101–1102. But nonetheless they recognised that ‘different minds may take a different view’ and considered that the EWCA ‘ought to follow [the earlier] decision’ under ‘ordinary’ and ‘well-settled practice … without condescending to technical questions whether we are bound by the decision or not’: at p 1102. Furthermore, the practice has not been limited to revenue statutes. In Secretary of State for Work & Pensions v Deane [2010] EWCA Civ 699, the EWCA applied the same practice to an issue about the interpretation of social security provisions.

The Australian approach

Australia is a federation with distinct judicial hierarchies for each of the six States and two territories, as well as one federal court system. Courts in every jurisdiction regularly face issues that require them to interpret and apply laws of inter-jurisdictional operation.

In Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485, the High Court of Australia (HCA) held that uniformity in interpreting uniform national legislation ‘is a sufficiently important consideration to require that an intermediate appellate court – and all the more so a single judge – should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong’: at p 492. The principle from Marlborough has been restated on multiple occasions. Indeed, in CAL No 14 v Motor Accidents Insurance Board (2009) 239 CLR 390, the HCA went so far as to chastise the Tasmanian Supreme Court for failing to ‘carry out its duty to follow the New South Wales Court of Appeal’: at [51].

The ‘plainly wrong’ test in Australia focuses on the extent to which the earlier decision can be said to be erroneous. The courts have recognised a distinction between ‘wrong’ and ‘plainly wrong’, the latter being met if the later court has a ‘strong conviction’ that the earlier judgment was erroneous and the nature of the error can be shown with a degree of clarity: Gett v Tabet (2009) 109 NSWLR 1 at [294]–[295]. Recent Australian decisions have rearticulated the test by asking whether there is a ‘compelling reason’ for departure—using the same language as Abbott and Jwanczuk. However, the HCA stated that a ‘compelling reason’ is merely a different expression for the ‘plainly wrong’ test and that the focus remains on the extent of the earlier court’s error: Hill v Zuda (2022) 275 CLR 24 at [25].

This, however, is not the only difference between the Australian and the UK approaches. First, the Australian rule does not differentiate between the ratio decidendi or ‘seriously considered’ obiter dicta of an intermediate appellate court of a coordinate jurisdiction. In Marlborough, the HCA went so far to remark that it was ‘somewhat surprising’ that an intermediate appellate court in Western Australia had followed a single judge decision from Victoria over obiter dicta by the Full Court of the Federal Court (which is an intermediate appellate court). Respectfully, that remark could itself be considered surprising given that the trial judge in Marlborough explicitly relied on the fact that the Full Court’s comments were obiter in justifying departure from its decision.

Secondly, the principle in Marlborough was extended in Farah Constructions v Say-Dee (2007) 230 CLR 89 to common law which is materially unaffected by statute on the basis that there is a single Australian common law, rather than one for each jurisdiction: at [135]. Given that the non-statutory law in England and Wales, Scotland, and Northern Ireland are distinct, it is not necessary to consider this point further.

The Canadian approach

Canada has a comparable judicial structure to Australia, with coordinate provincial courts and a system of federal courts. Unlike Australia, Canada has abandoned its previous ‘wrong’ and ‘clearly wrong’ distinction in 1975. In Wolf v The Queen [1975] 2 SCR 107, the Canada Supreme Court held that a provincial appellate court is not obliged ‘as a matter either of law or of practice’ to follow a decision of a different provincial appellate court ‘unless it is persuaded that it should do so on its merits or for other independent reasons’: at p 109. The Court stated that the previous distinction ‘is not one that commends itself either for its logic or its utility’. It explained that ‘[t]he only required uniformity among provincial appellate courts is that which is the result of the decisions of [the Supreme] Court.’

Analysis

The policy on whether courts of one jurisdiction should be required to follow decisions of courts of coordinate jurisdiction involves a tension between four concerns. First, there are the important goals of fostering stability and predictability in the law. There are legitimate expectations that the interpretation given by a court in one jurisdiction represents the law and will be followed by the courts of other jurisdictions. A divergence of interpretations in the same statutory text frustrates those expectations and has the potential to bring the administration of justice into disrepute. This counsels against allowing courts to choose between two potential interpretations solely on the merits, in circumstances when an earlier court had already ruled that one interpretation is to be preferred.

Secondly, there is the concern—most clearly seen in Wolf—that courts should be allowed to decide the case on the merits in their own independent judgment without being hampered by rules of practice beyond the usual rules of stare decisis. Abbott and Marlborough suggest scepticism of a laissez-faire approach and their heightened tests for compelling reasons or plain error suggest that the judges are only concerned to ensure later courts are not required to repeat serious errors. This is a particularly strong concern for intermediate appellate courts, whose decisions are binding on all lower courts in the same system. As intermediate appellate courts can depart from their own decisions in narrow circumstances, it would be incongruent if those courts could not depart from decisions of extra-hierarchical courts in at least the same narrow circumstances.

Thirdly, there is the concern not to hamper judicial innovation in elucidating the law or developing fresh perspectives. This concern is arguably stronger in a federation like Australia where States are considered ‘laboratories’ to test law and policy before they are adopted in other States or nationally. President Mason of the NSW Court of Appeal warned that Marlborough and Farah would ‘shut[] off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence’. He argued that ‘[i]f lower courts are excluded from venturing contributions that may push the odd envelope, then the law will be poorer for it.’ His observations reflect a concern to fashion a rule that would not marginalise different observations made by a fresh pair of eyes, particularly if the evidence and submissions differ.

Lastly, there is a need for any standard to be logical and workable. Wolf’s criticism of the previous distinction reveals a concern that a rule can become too confusing or lacks clarity. When is an error ‘clear’ or ‘plain’? Ultimately, the degree of perceived wrongness varies from judge to judge. There is a difficulty in calibrating degrees of perceived wrongness. Any rule thus needs to be one that courts can abide by and apply.

Having set out these considerations, it is appropriate to compare the Australian ‘plainly wrong’ and UK ‘compelling reason’ tests. The ‘plainly wrong’ test appears to focus on the egregiousness of the first court’s error. It has been suggested that there must be ‘transparent error’, such as considering an incorrect statutory instrument, failing to apply a binding decision, failing to consider a relevant statutory provision or interpreting a statute in a form not enacted at the relevant date: BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234 at [83]. However, it has been considered that the error need not be ‘immediately apparent’ from reading the judgment: Gett at [294]–[295]. Justice Heydon, writing extra-curially, argues that it could encompass ‘some forms of egregiously erroneous reasoning’. The focus is on the method, quality and cogency of the first court’s reasoning. It is plain error that supplies a compelling reason for departure: Pallas v Lendlease Corporation (2024) 114 NSWLR 81 at [23], [127].

Criticisms of a ‘clearly’ or ‘plainly wrong’ test are not limited to Wolf. Indeed, such a test attracted criticism in the House of Lords in a different context. In Davis v Johnson [1979] AC 264, Sir George Baker P considered that the EWCA could overrule a previous decision of its own ‘if satisfied that that decision was clearly wrong’, including where a decision ‘completely misinterpreted [a] recent statute and failed to understand its purpose’: at p 290. Lord Diplock (with Viscount Dilhorne, Lord Kilbrandon and Lord Scarman agreeing) criticised this exception because it ‘would seem wide enough to cover any previous decision on the construction of a statute which the majority of the court thought was wrong and would have consequences that were regrettable, at any rate if they felt sufficiently strongly about it’: at p 328. Lord Salmon also rejected Sir George Baker P’s suggestion that the categories in which the EWCA can overrule its own past decisions should be extended to include when the earlier decision is ‘clearly wrong’: at p 344.

In contrast, the ‘compelling reason’ test arguably invites an approach that potentially considers other factors apart from the degree of error. Lord Justice Underhill in Jwanczuk (EWCA) stated that a ‘minimum requirement’ is that the first court’s decision was ‘clearly wrong, where the word “clearly” connotes a heightened threshold’: at [44]. But he stated that a compelling reason ‘may depend on more than simply the strength of the second court’s disagreement’. It is unclear what additional factors could be relevant. Lord Reid in Abbott noted the undesirability of conflicting decisions in revenue matters and Kerr J in Jwanczuk appeared to suggest that the desirability of human rights being given the same content is a relevant consideration. This suggests that the field of law could be relevant, but it is difficult to imagine any field where divergence is desirable.

Conclusion

In Jwanczuk, the Supreme Court could benefit from considering the different approaches in other common law nations with multiple systems of law in resolving the tension between the principles and concerns identified above.

One issue is what rules of practice should exist beyond the orthodox formulation of stare decisis that decisions of extra-hierarchical courts are useful only to the degree of persuasiveness of their reasoning. A Wolf-like approach would promote the independence of each system and, as President Mason argues, give space for fresh ideas but undermine consistency and certainty in applying laws of inter-jurisdictional operation before an issue is finally determined by the apex court.

If the Supreme Court retains the ‘compelling reason’ rule, it should fashion guidance on how lower courts should apply that test. On one view, it could ask lower courts to focus solely on the extent of legal error and only depart when it is egregious, plain, serious or transparent. This approach would more closely align with the rule in Australia.

On a second view, it could insist on a more holistic approach that considers a multitude of considerations beyond the decision being ‘clearly wrong’. Potentially relevant considerations could include how long the first decision has stood, whether departure would upset reliance on the first decision, whether there exist any changed facts since the first decision, whether the first decision has proven workable in the real world, and whether it is consistent and coherent with previous or subsequent decisions. On this approach, it is only after evaluating all these factors that a court can decide whether there is a compelling reason to depart from the earlier decision.

Alternatively, a third view could avoid determining the extent of error of the earlier decision altogether by simply having courts apply the same rules that apply for overruling their own decisions: see, for the EWCA, Young v Bristol Aeroplane [1944] KB 718. This last approach would avoid the criticisms stated in Wolf and Davis but provides very narrow categories by which decisions of courts of a coordinate jurisdiction can be departed from.

Dane Luo is the Farthing Scholar in Administrative Law at Pembroke College, University of Oxford and recently graduated from the Bachelor of Civil Law with the Vinerian Scholarship Proxime Accessit. He is admitted to the Australian legal profession.

(Suggested citation: D. Luo, ‘R (Jwanczuk) v Work and Pensions Secretary: Bringing a Comparative Lens to Judicial Precedent on Inter-jurisdictional Laws’, U.K. Const. L. Blog (22nd January 2025) (available at https://ukconstitutionallaw.org/))