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The Contemporary Use of Legislative History in the United Kingdom

Published online by Cambridge University Press:  16 January 2009

T.J.N. Bates
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Extract

The use of legislative history by the courts as an aid to the construction and interpretation of statutory provisions has an extensive common law history. This has encompassed significant variation in judicial approach, perhaps reflecting changing constitutional relationships. Where principles have emerged they have been somewhat inconsistently applied, no doubt because courts have a residual competence to regulate their own procedure which is only loosely regulated by superior courts.

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The Cambridge Law Journal , Volume 54 , Issue 1 , March 1995 , pp. 127 - 152
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Copyright © Cambridge Law Journal and Contributors 1995

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References

1 Plucknett, T.R.F., Statutes and their Interpretation in the First Half of the Fourteenth Century (1980) p. 70.Google Scholar

2 (1678) 3 Swan. 644.

3 (1769) 4 Burr. 2303.

4 On the history of the exclusionary rule, see Bennion, F.A.R., Statutory Interpretation (2nd ed.) Supplement (1993) pp. A57–A71;Google ScholarBrazil, P., “Legislative History and the sure and true interpretation of statutes in general and the Constitution in particular” 4 U. of Queensland L.J. (1961–64) 1; Pepper (Inspector of Taxes) v. Hart [1993] AC. 593, 630–6.Google Scholar For a nineteenth-century example of inconsistency of judicial application of the exclusionary rule, compare R. v. Hertford College (1878) Q.B.D. 693, R. v. Bishop of Oxford (1879) 4 Q.B.D. 525, Julius v. Bishop of Oxford (1880) 49 L.J.Q.B. 577, 578.

5 E.g. Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 Q.B. 614, 624 per Lord Denning M.R.

6 Pickstone v. Freemans p.l.c. [1989] A.C. 66; see also Owens Bank Ltd. v. Bracco [1992] 2 A.C. 443.

7 R. v. Secretary of State for Transport, ex p. Factorlame Ltd. [1990] 2 A.C. 85.

8 E.g. Davis v. Johnson [1979] A.C. 264.

9 [1993] A.C. 593.

10 Baker, J.H., “Statutory Interpretation and Parliamentary Intention” [1993] C.L.J. 353,Google Scholar 357. In I.C.I, p.l.c. v. Colmar (Inspector of Taxes) [1993] 4 All E.R. 705, 709, Dillon L.J. observed, when counsel for the Crown sought to introduce an interpretative statement by an Opposition spokesman, “that does not help [counsel], as he does not establish that the government of the day shared the view” (emphasis added). In R. v. Inland Revenue Commissioners, ex p. Barker and Another [1994] S.T.C. 731, 738, Latham J. may have assumed the Pepper v. Hart guidelines, but he made no express reference to them when he observed, “I accept that in the light of the House of Lord's decision in Pepper v. Hart, the court can, where there has been a ministerial assurance that a particular statutory provision will or will not operate in a particular way relevant to the specific question in front of the court, strive to ensure that the words of the statute are construed in a way consistent with what was said”. The case is not made by such isolated judicial remarks, but it is doubtful if they will do much to reassure Professor Baker.

11 Moses, A. Q.C., “Pepper v. Hart: Why it Happened” (unpublished paper presented to the Administrative Law Bar Association/Statute Law Trust Conference on Pepper v. Hart, Balliol College, Oxford, 04 1994).Google Scholar

12 J.H. Rayner Dept. of Trade [1990] 2 A. C. 418, 483–4.

13 HL Deb. vol. 503, cols. 278 ff (18 Jan. 1989).

14 Rt. Hon. Sir Nicholas Lyell Q.C., M.P. “Pepper v. Hart: The Government Perspective” (1994) 15Stat. L.R. 1.

15 Op. cil. note 11 above.

16 Loc. cit. note 9 above, at 641.

17 T. St. Bates, J.N., “Parliamentary Material and Statutory Construction: Aspects of the Practical Application of Pepper v. Han” (1993) 14Google Scholar Stat. L.R. 46.

18 Oliver, D., “Pepper v. Hart: a suitable case for reference to Hansard?” [1993] P.L. 5.Google Scholar

19 LEXIS; also reported, The Times, 7 Nov. 1994.

20 [1994] 4 All. E.R. 411.

21 [1981] A.C. 281.

22 Cmnd. 247.

23 Loc. cit. note 20 above, at 416; emphasis added.

24 Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591.

25 Loc. cit. note 9 above, at 635.

26 Prebble v. Television New Zealand Ltd. [1994] 3 W.L.R. 970.

27 Loc. cit. note 9 above, at 638.

28 Loc. cit. note 26 above, at 970 (words italicised in the judgment).

29 For illustrations of this, see Bennion, F.A.R. “Law Texts and Legislative History” (unpublished paper circulated at the Canadian Institute for the Administration of Justice Seminar, “Communicating the Law: Getting the Message Across”, Ottawa, 09 1994) pp. 20–23.Google Scholar It was also argued in Pepper v. Hart that admitting parliamentary material might be a breach of parliamentary privilege which existed independently of the Bill of Rights, but no such privilege was identified and the argument was rejected, at 645–6.

30 Report of Proceedings of Tynwald Court, 16 March 1994, T490.

31 Lyell, Sir Nicholas, “Pepper v. Hart: The Government Perspective” (1994) 15Google Scholar Stat. L.R. 1; J.C. Jenkins, “Pepper v. Hart: A Draftsman's Perspective”, ibid., 23 cf. Bennion, op. cit. note 29 above, p. 23.

32 Jenkins, op. cit. note 31 above, pp. 25–6.

33 Loc. cit. note 9 above, at 636.

34 At 637B.

35 At 637G.

36 At 637D.

37 At 616–620.

38 At 615–616.

39 At 637.

40 Goudie, J. Q.C., “Pepper v. Hart: What does it mean in practice?” (unpublished paper presented to the Administrative Law Bar Association/Statute Law Trust Conference on Pepper v. Hart, Balliol College, Oxford, 04 1994).p. 7.Google Scholar

41 LEXIS (Ch.D); also reported, The Times, 20 May 1993.

42 LEXIS (Q.B.D.).

43 B.J. Davenport, (1993) 109 L.Q.R. 149.

44 See, however, the Supreme Court Practice Direction, 20 Dec. 1994. [1995] 1 All E.R. 234.

45 Scher v. Policyholders Protection Board (No. 2) [1993] 4 All E.R. 840; Wren v. Eastbourne B. C. & U.K. Waste Controls Ltd. [1993] 1.R.L.R. 425; I.C.I, p.l.c. v. Colmar (Inspector of Taxes) [1993] 4 All E.R. 705; NAP Holdings U.K. Ltd. v. Whittle (Inspector of Taxes) [1993] S.T.C. 592; R.v. London Borough of Wandsworth, ex p. Hawthorne. LEXIS (Q.B.D.).

46 R. v. London Borough of Wandsworth. ex p . Hawthorne. LEXIS (Q.B.D.).

47 R. v. Dorset C.C.. ex p. Rolls. LEXIS (Q.B.D.); also reported at (1994) 26 H.L.R. 381.

48 Re Ford Motor Co. Ltd. [1993] R.P.C. 399.

49 R. v. Secretary of State for the Home Department, ex p. Okello [1994] Imm. A.R. 261 (Q.B.D.); R. v. Secretary of State for Employment, ex p. N.A.C.O.D.S., LEXIS (Q.B.D.); Griffin (Inspector of Taxes) v. Craig-Harvey [1994] S.T.C. 94; R. v. Secretary of State for Foreign & Commonwealth Affairs, ex p. Rees-Mogg [1994] 2 W.L.R. 115; In Re Arrows Ltd. (No.4) [1993] 3 W.L.R. 513 (Ct. of App.); D.P.P. v. Bull [1994] 4 All E.R. 411; R. v. Registered Designs Appeal Tribunal, ex p. Ford Motor Co. Ltd., LEXIS (Q.B.D.); R. v. Archbishop of Canterbury and another, ex p. Williams, LEXIS (Ct. of App.) R. v. Canons Park Mental Health Review Tribunal, ex p. A [1994] 3 W.L.R. 630; cf. Attorney General v. Associated Newspapers Ltd. [1994] 2 A.C. 236; Welby v. Casswell, LEXIS (Q.B.D.); Richardson v. London Borough of Hammersmith and Fulham, LEXIS, The Times, 7 Nov. 1994.

50 Busby v. Co-operative Insurance Society Ltd., LEXIS; also reported at [1994] E.G. 141.

51 [1994] 4 All E.R. 411.

52 At 416.

53 See generally, T. St. Bates, J.N., “Judicial Application of Pepper v. Hant” (1993) Journal of the Law Society of Scotland 251;Google Scholar T. St. Bates, J.N., “An Overview of Developments since Pepper v. Hart” (unpublished paper presented to the Administrative Law Bar Association/Statute Law Trust Conference on Pepper v. Hart, Balliol College, Oxford, 04 1994)Google Scholar; F.A.R. Bennion, “Pepper v. Hart in its Context” (ibid.).

54 LEXIS (Ct. of App.).

55 Lord Lowry in Attorney-General v. Associated Newspapers Ltd. [1994] 2 A.C. 236, 260, in a slightly different context, examined some of these forms of textual ambiguity.

56 See R. v. London Borough of Wandsworth, ex p. Hawthorne, LEXIS (Q.B.D.); Botross v. London Borough of Hammersmith and Fulham, LEXIS (Q.B.D.).

57 [1993] S.T.C. 624.

58 [1975] 1 W.L.R. 1701, 1710.

59 [1993] S.T.C. 240, 255; see also R. v. London Borough of Wandsworth, ex p. Hawthorne, LEXIS (Q.B.D.).

60 1994S.C.L.R. 135.

61 At 143.

62 LEXIS; on appeal, it was held that the provisions did not fall within Pepper v. Hart ambiguity (Customs & Excise Commissioners v. Robert Gordon's College [1994] S.T.C. 896).

63 [1993] A.C. 754.

64 At 772.

65 LEXIS; also reported at [1993] P.L.R. 124.

66 LEXIS; see also Reslick v. Crickmore [1994] 1 W.L.R. 420.

67 [1994] S.T.C. 785; cf. Customs and Excise Commissioners v. Robert Gordon's College [1994] S.T.C. 698.

68 [1993] S.T.C. 240.

69 [1972] A.C. 109.

70 At 255; see also National Rivers Authority (Southern Region) v. Alfred McAlpine Homes East Ltd. [1994] 4 All E.R. 286, Re Bishopsgate Investment Management Ltd. [1993] Ch. 452; cf. R. v. Thompson, LEXIS (Ct. of App).

71 [1993] I.C.R. 517.

72 [1983] 2 A.C. 548.

73 At 562–3.

74 At 569–70.

75 At 568.

76 [1993] I.C.R. 517, 526. It may be observed that if A agrees with both B and C it does not necessarily follow that the reasoning of B and C is consistent; nor does it necessarily follow that if A does not refer to the reasoning of B and C that A has not detected any difference in their reasoning; A may, for example, have detected a difference but not considered it relevant to the decision to be made.

77 [1993] I.C.R. 517, 527, 528.

78 [1993] I.R.L.R. 196.

79 [1992] I.C.R. 175.

80 [1993] A.C. 593, 614.

81 [1993] A.C. 583, 591,592.

82 [1993] A.C. 498, 508.

83 [1993] A.C. 754, 772; see also Massmould Holdings Ltd. v. Payne [1993] S.T.C. 62, 74, Re Ford Motor Co. Ltd. [1993] R.P.C. 399, Cardiff City Council v. Destrick, LEXIS (Q.B.D.).

84 [1993] A.C. 593, 620, per Lord Oliver of Aylmerton.

85 At 638 (Lord Browne-Wilkinson).

86 At 634 (Lord Browne-Wilkinson).

87 [1993] AC. 754,770.

88 LEXIS (Q.B.D.).

89 Re London Regional Transport Pension Fund Trust Co. Ltd., LEXIS (Ch.D.).

90 Botross v. London Borough of Hammersmith and Fulham, LEXIS (Q.B.D.).

91 LEXIS; also reported at [1993] P.L.R. 124.

92 Cf. Re Ford Motor Co. Ltd. [1993] R.P.C. 399, where Mr. J. Jeffs Q.C. (sitting as a Deputy High Court judge) referred to a Minister's winding up speech at second reading in the House of Commons.

93 [1994] 2 W.L.R. 115.

94 At 123. Certainly it would be curious to hold inadmissible an otherwise admissible statement, on the grounds that it was based on the advice of a Law Officer, whose advice if given in the House would be admissible. See Thomas Witter Ltd. v. T.B.P. Industries Ltd. (LEXIS, Ch.D.) where the opinion of the Solicitor General to the House on the effect of the Misrepresentation Act 1967, s. 2, was admitted.

95 [1994] I All E.R. 270.

96 See also Mullan v. Anderson [1993] S.C.L.R. 256 (consideration of Grant Committee Report on the Sheriff Court); Customs and Excise Commissioners v. Kingfisher p.I.e. [1994] S.T.C. 63 (consideration of White Paper); cf. Joint (Inspector of Taxes) v. Bracken Developments [1994] S.T.C. 300. Northern Ireland courts will admit parliamentary material on English legislation which is applied by Order to Northern Ireland: R. v. Thompson, LEXIS; Connolly v. Secretary of State for Northern Ireland, LEXIS.

97 “ LEXIS (Ct. of App.).

98 In Mendip D.C. v. Glastonbury Festivals Ltd., LEXIS (Q.B.D.), the court heard a submission that reference should be made not only to parliamentary material during the passage of the Local Government (Miscellaneous Provisions) Act 1982, but also to such material in respect of the Entertainments (Increased Penalties) Act 1990, which amended the 1982 Act. Watkins J., decided it would be impermissible to refer to parliamentary material relative to the 1990 Act “because (a) the Act post-dated the commission of the offence or offences in the present case and (b) 1 doubt, in the circumstances of this case, that it is permissible to endeavour to construe an earlier statute, that in question, by reference to a later statute”.

99 [1993] A.C. 593,628.

100 Elf Enterprise Caledonia Ltd. v. Inland Revenue Commissioners [1994] S.T.C. 785.

101 In R. v. Warwickshire County Council, ex p. Johnson [1993] A.C. 583, at 591, Lord Roskill quoted a sentence from a speech by Lord Denning. Given the reference to other contextual material, the quotation was unnecessary, more particularly as Lord Denning was referring to an implication of the statutory provision which was not in issue in the appeal. In Stubbings v. Webb [1993] A.C. 498, at 507–8, Lord Griffiths quoted from a second reading speech by Lord Tucker, who had been the chairman of a Government committee. The recommendations of the committee had largely been implemented by legislation. However, one recommendation of the committee had been modified in the Bill. In the passage of the speech which was quoted, Lord Tucker merely explained how his committee had reached a conclusion on that recommendation by a compromise and that he was inclined to favour a solution such as that in the Bill.

102 [1993] A.C. 593, 634; cf. NAP Holdings U.K. Ltd. v. Whittles (Inspector of Taxes) [1993] S.T.C. 592.

103 [1993] A.C. 593,637,642.

104 [1994] S.T.C. 54.

105 [1993] R.V.R. 141; see also R. v. Secretary of State for Foreign and Commonwealth Affairs, ex p. Rees-Mogg [1994] 2 W.L.R.115, 123.

106 [1993] A.C. 593, 638.

107 Loc. cit., note 91 above.

108 [1994] Imm. A.R. 261 (Q.B.D.).

109 [1993]S.C.L.R. 534.

110 Al 542, per Lord McCluskey; in the transcript as reported on LEXIS, Lord McCluskey observed of the parliamentary material that, “that there was nothing in the ministerial or other statements to indicate that Parliament had any intention to legislate on the matter of ante-natal injuries at all”.

111 [1993] A.C. 754.

112 At 772.

113 The narrower issue of whether reference to parliamentary material in the construction of delegated legislation (for which Pickstone v. Freemans p.l.c. [1989] A.C. 66 is authority) is subject to the Pepper v. Hart guidelines was addressed, but not decided, by Laws J. in R. v. Secretary of State for the Home Department, ex p. Okello [1994] Imm. A.R. 261 (Q.B.D.).

114 LEXIS (Q.B.D.).