Before any argument can be made about open justice, access to court documents, the observer effect, or the limits of judicial and executive power, there must be a shared and correctly stated account of how English law works.

The common law precedent system is the people's meta-law — the operating system by which all recognised sources (common law (judicial reasoning), equity, custom, constitutional instrument and statute) are identified, reasoned, applied, and developed. This binds judicial discretion and that is what makes it superior to any other legal system tried and tested by humanity - it is the only way to uphold equality under the law which is required to enforce all are equal under the law and no one is above the law, and hence all are accountable under the law as equals.

Without understanding this operating system, arguments about any substantive right rest on unstated and / or uncontestable assumptions about the structure of law itself.

Every later argument stands on this unimpeachable constitutional ground for a free society.

This understanding is simple but far-reaching:

• vertical and horizontal stare decisis are not a matter of judicial comity or courtesy — it is the foundational principle of equality under the law;
• Ratio decidendi is only the outcome of a specific case,
• The principle of law necessary to that outcome is what binds lower courts whenever materially similar facts require its application.

Understanding this difference between a case-specific ratio and the binding principle of law derived from it is the key that unlocks the connection between Case of Proclamations (1610) and Entick v Carrington (1765), between Entick and the Court of Protection, and between all of those cases and the open justice jurisprudence of Cape v Dring  UKSC 38.

The Common Law System as Meta-Law

The common law system is the legal method by which recognised sources are identified, reasoned, applied, and developed.

The Law Lords 1966 Practice Statement begins by describing the use of precedent as "an indispensable foundation upon which to decide what is the law and its application to individual cases"

and confirms that it "provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules."

This is not a statement about one tool among many. It is a statement about the architecture of the entire legal system.

Coke’s “Reason is the life of the law; nay, the common law itself is nothing else but reason - the law which is perfection of reason’

Holt CJ gave this binding principle of law formulation in Ashby v White (1703) 2 Ld Raym 938: "The law consists not in particular instances, but in the reason that governs them."

This is the foundational distinction between the outcome of a case, the cases’ ratio decidendi,  from which binding principles of law are derived which then are applied to similar facts to resolve later disputes fairly and equitably under the law which is foundational for ensuring all are equal under the law; no one is above the law.

The principle governs the world at large. As Salmond put it: "The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large." Reaffirming Holt’s binding principle of law formula.

This corollary is expressed in the maxim cessante ratione legis, cessat ipsa lex — when the reason for a legal rule ceases, the rule itself ceases.

Ratio therefore is the legal reason necessary to a case specific decision, not in the bare event of a result. This means that to identify the ratio of a case, one must read the source-text of the judgment to derive the principle of law (binding logic and reason applied to facts of the case) the court had to apply in order to resolve the issue on those facts — not the winner, not the outcome, not a later political or institutional summary of what was "decided."

These are not ‘old, ancient, irrelevant or abstract' opinions, but old law is good law as it has stood the test of time. All that has changed over the centuries is the language, the form of words but not their meaning!

Today these are legally enforceable against public bodies under the main Judicial review grounds - The three traditional grounds of judicial review were identified by Lord Diplock in the GCHQ case [1985] AC 374. They are: illegality, irrationality, and procedural impropriety. These categories are not rigid or exhaustive.

Further the judicial duty includes to provide reasoned judgments under the constitutional principle of open justice.

The Declaratory Function of Adjudication

English law proceeds on the footing that judges do not make law but declare it. Law is treated as belonging to the law of the land — pre-existing in principle in custom, conscience, and right — and adjudication is the mechanism of crystallisation rather than creation.

If judges created the law, the law would be an artefact of the State.

If they declare pre-existing custom and right, the law remains the property of the people, and public power remains subject to it.

This is why the common law system is properly described as the meta-law: it is the mechanism by which truth, conscience, and custom are converted into enforceable legal record.

The practical consequence is that a judgment which ignores binding law, or departs from higher custom or reason, is unlawful — not because it is inconvenient, but because the map cannot overrule the actual terrain. Where conflict is shown, the court's duty is to restore the record to conformity with law, not law to conformity with record - ex debitio justitia - as a debt to provide justice to those governed. This is per incuriam in its deepest constitutional sense.

Ratio Decidendi: Principle, Not Outcome

The most important and most frequently misunderstood feature of the common law system is the distinction between:

(a) the binding principle of law derived from a case, and

(b) the case-specific application of that principle to particular facts.

These are not the same thing and conflating them is the most common way in which courts, legal professionals, institutional actors, and practitioners misuse precedent and thereby abuse their duty to you at your expense - this is their main money generating method together with misapplying the rules of interpretation - arguing form of words and fail to apply substance. From our experience and evidence this applies equally to judicial officers as well as legal professionals whose duty is to the rule of law as its whole body which is discussed in later parts of this series.

The ratio decidendi is the ruling on a point of law expressly or impliedly treated by the judge as a necessary step in reaching their conclusion in a specific case.

It is not the outcome. It is not a summary. It is not the proposition most convenient for a later reader to find. It is, in Lord Leggatt's formulation, "a rule of law established by a judicial ruling” found in the reasoning of the source-text of the judgment itself, not in later digests, summaries, or institutional preferences.

Three ratio-discipline rules follow from this:

(1) ratio anchors only on the source-text;

(2) ratio is an interpretive principle, not an institutional command; and

(3) outcomes are not ratios.

These are not abstract methodological preferences. They are operative legal rules that govern how every later court must read every earlier case.

The Binding Principle Derived from Ratio — Two Levels

The binding principle of law operates at two levels that must be kept carefully separate.

Level 1 — The case-specific ratio is the ruling on the precise legal point necessary to resolve the dispute on the particular material facts before the court.

In Cape v Dring, the case-specific ratio concerns access to documents by the Asbestos Victims Support Group in product liability litigation.

In Entick v Carrington (1765) 19 St Tr 1029, the case-specific ratio concerns the invalidity of a general warrant authorising the search of John Entick's home and seizure of his papers.

Level 2 — The binding principle of law is the equitable substantive legal reason which, once extracted from the source-text, governs any materially similar situation, regardless of the specific parties, context, or time.

The ratio (fact specific) derived from Entick — that the state and its officers / agents may do nothing but that which is expressly authorised by law, and that in the absence of a lawful authority found in the books, the silence of the books is an authority against the defendant — this case specific ratio governs every subsequent case in which a public body claims a power it cannot trace to a legal source.

The Proclamations–Entick–Cape Chain

The Case of Proclamations (1610) 12 Co Rep 74 contains many ratios which together are required to answer the question as to who and how a first precedent is created.

One case specific ration unanimously affirmed (11-0) by the UKSC in the Miller II [2019] judgment is the ratio that "The King hath no prerogative, but that which the law of the land allows him"

Breaking it down to determine the principle of law as follows:

"The King..." - as all are equal under the law = any person

"hath no prerogative,..."  = authority to act

"but that..." = where is the authority to acts' source

"which the law of the land allows him..." = the source of authority (=plenary authority)

— meaning any exercised or claimed power must be proven to exist in law. However, the equitable binding substantive principle of law is:

“No legal person, public or private, may exercise or confer derivative authority in a way that contradicts the legal order from which that authority is said to stem. A derivative power cannot outrun its plenary source.”

Lord Camden CJ confirmed the same principle of law in the case specific ratio in Entick v Carrington: "If it is law, it will be found in our books. If it is not to be found there, it is not law." He held that no claim of public power can be upheld unless it is justified by positive law — absent such authority, the silence of the books is an authority against the defendant.

Case of Proclamations and Entick v Carrington do not share a case-specific ratio (one concerns proclamations, the other concerns general warrants and seizure of papers) but they follow the same binding principle of law:

all assertions of power must be traceable to a lawful source within the law of the land, and cannot be validated by institutional practice, usage, or official will alone.

This is nothing more than simple principles of master / slave > principle / agency – the same binding principle of law applies to all and thereby upholding the very foundations of equality under the law and he who asserts must prove – hence innocent until proven guilty!

Again, these are not ‘old, ancient or irrelevant’ abstract opinions, but old law is good law as it has stood the test of time. All that has changed over the centuries is the language, the form of words but not their meaning! Today these are legally enforceable against public bodies under the main Judicial review ground of ultra vires – acting without lawful authority, and the judicial duty to identify the source of the disputing parties legal instrument which creates their respective duties, rights and obligations as affirmed by Lord Diplock in Times v Att. General [1974].

Applying this to Cape v Dring : the principle that open justice is a constitutional principle applying to all courts and tribunals, with access to documents as the default position, does not derive its force from the specific facts of the asbestos litigation. Its force derives from the same constitutional chain — that the court's inherent jurisdiction flows from the law of the land, that the burden lies on those who wish to depart from the default to demonstrate a legal justification, and that no court may validate a practice of secrecy unless it can be traced to a lawful source within the law of the land.

Applied to any court or officer that denies physical access to the public, withholds documents, or refuses a CVP link: the same binding principle governs. An institutional practice of secrecy, however long-standing, cannot validate itself. Quod ab initio non valet in tractu temporis non convalescit — what is not valid at the beginning does not become valid by the passage of time, another principle of law applied in the Case of Proclamations.

Stare Decisis: A Binding foundation of Common Law

Vertical Stare Decisis

Vertical stare decisis is a binding foundation of common law: decisions of higher courts bind lower courts on materially similar facts, thereby securing equality before the law, legal certainty, and disciplined judicial subordination to law rather than to personal preference. The operative limb is that vertical bindingness "is not a matter of courtesy. It is the mode by which like cases are decided alike through previously declared principle, so that no court of lower authority may prefer its own view to the binding legal reason of a higher court." This is without dispute.

This is reinforced by Lord Hailsham LC in Cassell v Broome : lower courts must "accept loyally the decisions of higher courts." Lord Diplock's reaffirmation in Davis v Johnson treated the Court of Appeal as bound by its own previous decisions save within the recognised categories, confirming that the hierarchy operates as a system of law, not of courtesy.

Strict vertical binding operates downward from the Supreme Court. Every court below the Supreme Court is bound by the Supreme Court decisions.

Horizontal Stare Decisis - not judicial comity but binding under vertical stare decisis

If there is no binding higher authority any lower court on first instance must apply the same Proclamations-method:

1. identify the competing authorities,
2. test them against source, reason, and higher principle,
3. follow the line best supported in law, and
4. preserve the point for appellate resolution.

This is not a licence for judicial preference. The burden remains on demonstrating legal error of a recognised kind, not merely asserting that the judge prefers a different answer.

The 1966 Law Lords Practice Statement expressly recognises that even the apex court may depart from its own precedents, but only for reasoned legal cause:

"too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law."

Lord Bridge stated the principle in its sharpest form in the case specific ratio in R v Shivpuri: "If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."

This case specific ratio then under vertical stare decisis creates a binding the binding principle of law on all lower courts for departure from horizontal  (coordinate level courts) precedent to:

1. secure stability,
2. equality, and
3. orderly development, and
4. prior coordinate court decisions therefore ordinarily bind;

But where a prior decision is shown by legal reason:

1. to be seriously wrong,
2. to work injustice in the particular case,
3. to impede the proper development of the law, or
4. to be irreconcilable with higher authority or higher principle,

The common law system itself supplies the binding justification for departure under the foundational law - vertical stare decisis!

That is not a licence for judicial preference: the error must be demonstrated, not merely asserted, and the higher principle with which the prior case cannot stand must be identified.

So unlike the current judicial treatment under the guise of professional courtesy known as judicial comity – it is a binding principle of law that departure from coordinate decisions can only be done on the same grounds as per the supreme court where there is no binding vertical principle of law for the same or related facts.

The Court of Appeal (Civil Division) affirms this principle of law for horizontal stare decisis, being bound by its own previous decisions subject only to the three Young v Bristol exceptions: conflicting decisions, subsequent House of Lords authority, or per incuriam. High Court decisions bind courts inferior in the hierarchy.

Therefore it follows every lower court therefore is bound by a higher authority, so wherever an appeal lays – that court is binding on a lower court and if no such binding authority exists in first instance the Case of Proclamations ratio must be applied, and departure at the coordinate court level can only depart with good lawful reason until a higher court affirms or rejects the lower court reasoning.

The Six-Gateway Operational Test

Any claimed rule or power must be capable of operational legal testing by a court. The system derived from Case of Proclamations and Entick v Carrington, read through the attached materials, yields a six-element test that every asserted rule or power must satisfy before it can count as part of the law of the land:

Gateway 1 — Source. A claimed rule must come from a recognised legal source within the law of the land — common law, equity, statute, or constitutional instrument. Bare institutional practice, official usage, or administrative habit is not a recognised source. "The King hath no prerogative, but that which the law of the land allows him."

Gateway 2 — Authority Pedigree. The asserted proposition must stand on a sound authority-line. Prior decisions that were themselves made in error, or that cannot be traced to recognised sources, do not improve with repetition. Quod ab initio non valet in tractu temporis non convalescit.

Gateway 3 — Legal Character. The court must identify what kind of legal thing is being asserted — duty, power, disability, immunity, right, constitutional norm, or ordinary regulatory rule — before deciding what consequences follow.

Gateway 4 — Interpretive Method. A source must be read by the method proper to that source, beginning with its own legal form and words, and in the case of statutes by identifying the true reason of the remedy so as to suppress the mischief and advance the remedy.

Gateway 5 — Constitutional Compatibility. Even where text and pedigree are facially present, the proposition asserted must still sit compatibly with the inherited constitutional order as a whole. Public power exists within law and not above it.

Gateway 6 — Lawful Application. A proposition is not part of the law of the land merely because it can be stated in the abstract — it must be capable of non-contradictory and lawful application in concrete adjudication. As Lord Camden stated: "If no excuse can be found or produced, the silence of the books is an authority against the defendant."

The Constitutional Maxims as Binding Logic - Ignorance of the law is no excuse

The maxims used throughout this work are not decorative Latin. They are foundational elements of lex non scripta which control the movement from case-specific ratio to the general principles of law that keep the system internally coherent, non-contradictory, and knowable to all.

Nemo dat quod non habet — no one can give what they do not have.

A public body cannot validly grant to itself or to others a power which the law has not first vested in it. This is the structural corollary of the Proclamations principle.

Cessante ratione legis, cessat ipsa lex — when the reason for the legal rule ceases, the rule itself ceases.

This is the constitutional warrant for departing from a precedent whose underlying legal reason has been shown to be wrong, or whose application in a new context would undermine the very purpose the rule was designed to serve.

Ubi jus ibi remedium — where there is a right, there must be a remedy.

Holt CJ stated this in Ashby v White (1703): "if the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it."

Applied to open justice: if there is a constitutional right of public access to documents used in litigation, there must be a remedy when that right is denied. The absence of a formal prescribed remedy does not defeat the right — it enlarges the court's jurisdiction to supply one.