Abstract
It is commonly believed that the rule prohibiting reliance on legislative history as an aid to statutory interpretation was firmly in place in the United Kingdom, and indeed throughout the English-speaking common law jurisdictions of the world, long before the turn of the 20th century; and that the rule was set aside in the case of Pepper v Hart in 1992. However, an examination of the relevant cases and the canonical textbooks by Maxwell and Craies reveal that the rule was subject to a significant amount of disagreement at the turn of the 20th century, particularly with respect to the admissibility of commissioners’ reports to uncover the mischief of a statutory provision. This disagreement would not be completely resolved until the 1960s. With respect to other types of legislative history, there were prominent exceptional cases over the course of the 20th century; and there was a gradual acceptance of more types of legislative history as aids to statutory interpretation during the decades leading up to Pepper v Hart. Thus, the simple narrative description that the rule was firmly in place until it was set aside in 1992 must give way to a more complex narrative of disagreement and gradual decline. Meanwhile, as the rule lost traction in the United Kingdom over the course of the 20th century, a growing accumulation of justifications for the rule has been assembled, and an ongoing debate has been taking place about the efficacy of reliance on legislative history. Based upon the different trajectories followed in other English-speaking common law jurisdictions, and particularly the United States, the decline of the rule was not inevitable. It follows that the current state of affairs is likely to change over time.
Introduction
When consulting any of a number of well-respected scholarly works on statutory interpretation, one will often find a simple narrative description of the history of the common law rule prohibiting reliance on legislative history in aid of statutory interpretation. Scalia and Garner provide an excellent example: ‘In English practice, a complete disregard of legislative history remained the firm rule from 1769 when it was first announced, until 1992, when the House of Lords changed the practice’ 1 . Those familiar with the traditional cases will instantly recognise 1769 as a reference to Millar v Taylor, 2 and 1992 as a reference to Pepper v Hart. 3
While one purpose of this article is to challenge this simple narrative by revealing that the reality is far more complex, there is also an attempt to grapple with the jurisprudential developments that have brought about what is arguably the most significant change in common law adjudication over the past century. Parliamentary materials—commissioners’ reports, bills, white papers and statements made in the houses of Parliament and so on—have shifted from being highly restricted, if not strictly forbidden, to being readily available for the purpose of understanding the context within which legislation was passed; and admissible as an aid to interpretation when certain probative standards have been met. There has been a fundamental change. Formerly, out of respect for the legislature, all proceedings and communications were to be ignored; and now, out of respect for the legislature, the proceedings ought to be permissible considerations when seeking to understand legislation.
I have argued elsewhere that Millar v Taylor has become misunderstood as a precedent for statutory interpretation 4 and that the rule did not simply become established in the United Kingdom and America as a result of that case. 5 Meanwhile, the jurisprudential change at issue here, the move from restriction to permissiveness, began in the late 19th century when a series of appellate court judgments caused doubt about the breadth and strength of the rule against legislative history. Thus, the focus will be on the rule as of the late 19th century through to the present. The emphasis will be on the United Kingdom, however, various other common law jurisdictions will be discussed as comparators to better understand the nature of the developments.
With the theme in mind that the reality is more complex than simple rhetorical statements might suggest, six points will be defended in this article. The first point concerns how firmly established the rule was at the turn of the 20th century. Despite claims to the contrary, the rule was subject to sufficient ambiguity and doubt to cause a conflict between the two dominant treatises on statutory interpretation. The second point concerns the clarity of the rule over the course of the 20th century. While much of the doubt surrounding the rule would be settled a few years into the 20th century, a significant amount of uncertainty would remain with respect to the admissibility of commissioners’ reports for the purpose of uncovering the mischief that a statute was intended to remedy. This matter would not be fully resolved until the 1960s. The third point concerns how strictly the courts adhered to the prohibition of legislative history. There were some noteworthy exceptional cases which, despite being prominent for other reasons, seemed to escape the notice of scholars of statutory interpretation. The fourth point concerns how the prohibition of legislative history came to an end. It did not occur abruptly with the case of Pepper v Hart. Instead, the rule yielded to exceptions incrementally over a period of several decades. The fifth and sixth points are considered for the sake of rounding out the jurisprudential context. The decline of the rule prohibiting recourse to treaties and preparatory materials when dealing with legislation to implement treaty obligations was a related issue. English judges were reluctant to set aside this rule, and did so in a very conservative fashion late in the 20th century, contemporaneously with the rule prohibiting legislative history. Contemporaneity was also exhibited by many of the English-speaking common law jurisdictions throughout the world. In most of these nations, the prohibition followed a somewhat synchronous decline. This is a curious sociological phenomenon as most of these jurisdictions had severed their formal ties to the UK court system and were not bound to follow the UK jurisprudence.
After considering these six issues, an attempt will be made to grapple with the many arguments that have been put forward in support of the rule against legislative history and counterarguments that can be raised. Relatively recently, Scalia and Garner put forward a comprehensive collection of arguments in favour of the rule, and the purpose, here, is to provide a countervailing perspective.
Finally, the post-Pepper v Hart cases will be considered so as to arrive at an understanding of the current state of the law in the United Kingdom.
The unsettled state of the law at the turn of the 20th century
Despite claims about the rule prohibiting recourse to legislative history, the state of the law was decidedly unsettled in the final decades of the 19th century. There was no generally accepted way of describing the rule nor were there generally accepted precedents in support. Evidence of this can be found in the two most well-respected treatises on statutory interpretation available at that time. The first was the canonical treatise by Sir Peter Bensen Maxwell, On the Interpretation of Statutes; and the second was the treatise by Henry Hardcastle, which morphed into Craies’ treatise, On the Construction and Effect of Statute Law, a current edition of which remains in publication today. 6
The first edition of Maxwell’s treatise was published in 1875. In this work, the prohibition on legislative history was described as a broad and strict rule: the language of an Act can be regarded only as the language of the legislature, and the meaning attached to it by its framers or by members of parliament cannot control the construction of language when it becomes that of the Legislature. The intention of the Legislature can be collected from no other evidence than its own declaration, that is, from the Act itself[.]
7
The first edition of Hardcastle’s treatises, published in 1879, dealt with the matter differently. Hardcastle distinguished between commissioners’ reports and ‘the “Parliamentary history” of a statute, that is to say, the debates which took place in Parliament when the statute was under consideration; and the alterations made in it during its passage through committee’. 10 Both were impermissible considerations according to the first edition, and the authorities cited followed the distinction. The authorities for refusing Parliamentary history included R v Hertford College, 11 Green v The Queen 12 and Attorney General v Sillem. 13 The authorities for refusing commissioners’ reports were Selkeld v Johnson 14 and Farley v Bonham. 15
The second edition of Maxwell’s treatise, published in 1883, contained some additional authorities, but the claim remained the same. This can be contrasted with the second edition of Hardcastle’s treatise published in 1892. It contained a significant revision with respect to Parliamentary history, which ‘until very recently, it was never allowable to refer to in discussing the meaning of an obscure enactment[.]’ 16 Thus, the treatise stated that it had become permissible to do so. Two cases were cited in support: R v Bishop of Oxford 17 and SE Railway v Railway Commissioners. 18 Craies noted the obvious inconsistency between the rule permitting legislative history and the rule prohibiting reliance on commissioners’ reports in a footnote. 19
The third edition of Maxwell in 1896 contained no substantive changes. However, the third edition of Hardcastle’s treatise, published in 1901 and edited by William Fielden Craies, contained another important change. The treatise claimed it was ‘now established that reference may be made to previous statutes in pari materia, and to reports on their effect and defects’. 20 He cited Eastman Photographic Materials Company v Comptroller-General of Patents, Designs and Trademarks 21 as the main authority. In this case, the Comptroller-General had refused to permit the word ‘solio’ to be registered as a trademark for photographic paper because he regarded it as forming part of the English language. When reversing the decision of the Comptroller-General, Halsbury LC referred to the commissioners’ report that preceded the relevant amendment to the Patents, Designs, and Trade Marks Act 1883: 22 ‘I think no more accurate source of information as to what was the evil or defect which the Act of Parliament now under construction was intended to remedy could be imagined than the report of that commission’. 23 Lords Herschell, MacNaghten, Morris and Shand concurred. This was a unanimous decision by the House of Lords at a time when stare decisis was applied strictly. 24
Anyone who is modestly familiar with the history of statutory interpretation in England will find it remarkable that the two dominant English treatises made divergent claims about the law governing legislative history in aid of statutory interpretation at the turn of the 20th century. Maxwell’s treatise put forward what could be regarded as the orthodox claim: that all materials comprising legislative history were forbidden by a single rule. No recourse could be had to Hansard, bills prior to enactment or commissioners’ reports under any circumstances. Meanwhile, Craies claimed that parliamentary debates and commissioners’ reports were dealt with via separate rules and that recourse could be had to the former to interpret an obscure statutory provision, while recourse could be had to the latter under the mischief rule. 25
In almost every other respect, these treatises were interchangeable: they both put forward the same collection of rules and canons of interpretation, often supported by the same cases, although within a slightly different organisational framework. Both treatises embodied good faith efforts to state the law as it was. On the face of it, the disagreement is rooted in the simple fact that a different amount of weight was given to the recent cases to resolve a very typical ambiguity that arose within the relevant body of cases. Underneath, it would appear that the editors of Maxwell’s treatise believed in the efficacy of the simple, broad and strong prohibition of Parliamentary materials, whereas the editors of Hardcastle’s treatise felt it insufficiently established as a broad principle to withstand exceptions from the higher courts. It is possible that Craies found parliamentary material useful in his legal research and therefore supported the development of these exceptions. This would be the motivation for those who supported exceptions going forward.
This contradictory state of affairs was partially resolved in the fourth edition of Hardcastle’s treatise, which was rebranded as the first edition of Craies on Statute Law. 26 This edition claimed that it was not permissible to refer to the Parliamentary history. Several cases from the first edition were cited as well as some more recent cases including R v West Riding of Yorkshire County Council. 27 However, Craies continued to assert that commissioners’ reports were permissible under the mischief rule based on the Solio case. Craies and Maxwell would remain opposed to each other on this matter until much later in the century. It appears that Craies yielded some ground to a broad prohibition as reiterated by West Riding but followed the doctrine of strong stare decisis with respect to the Solio case. This was not unreasonable. In this time, the House of Lords claimed that they could not overturn their own past decisions.
West Riding would become an often-cited precedent for the rule against reliance on legislative history.
28
It is interesting to note that Lord Justice Farwell explicitly incorporated the Solio case in his opinion in his effort to stamp out any notion that recourse could be had to legislative history: The principles of construction applicable to Acts of Parliament are well settled, and will be found stated in Stradling v Morgan,
29
and which has received approval of Turner LJ, in Hawkins v Gathercole,
30
and of Lord Halsbury in Eastman Photographic Materials v Comptroller-General of Patents,
31
…. The mischief to be cured by the Act, and the aim and object of the Act must be sought in the Act itself. Although it may, perhaps, be legitimate to call history in aid to show what facts existed to bring about a statute, the inferences to be drawn therefrom are extremely slight….
32
With a clear conflict between West Riding and the Solio case, and between Maxwell and Craies, there was a point of law that needed to be settled. Over a period of several decades, the matter was tested in court.
The admissibility of commissioners’ reports in the 20th century
The first prominent case to address the issue was Viscountess Rhondda’s Claim. 33 Counsel argued that the Report of the Committee of Privileges should be considered and Viscount Birkenhead decided that the report was a judgment of a judicial body ‘governed by a pedantic and absolute adherence to the rules which govern procedure in Courts of law’. 34 This statement implies that the report would be admissible and indeed, potentially persuasive on the grounds that it was analogous to a case. There would be no need for the mischief exception in this circumstance. However, the case was decided without recourse to the report, and the statement was obiter.
The next significant case to confront the issue was Assam Railways and Trading Co v Commissioner of Inland Revenue.
35
This was a tax case in which the appellant company contested the method of calculating the net amount subject to tax relief based on an anti-double taxation rule for companies paying taxes in India, in accordance with the Income Tax Act 1918. Counsel for the appellant sought to rely on recommendations from a Report of a Royal Commission on Income Tax in 1920;
36
he argued that, as the Act of 1920 followed these recommendations, it should be presumed that the words of the section were intended to give effect to them and hence they could be used to show what was the intention of the Legislature in enacting the section.
37
It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the Report of Commissioners is even more removed from value as evidence of intention, because it does not follow that their recommendations were accepted.
38
In 1939, the Privy Council consulted a commissioners’ report when deciding Ladore v Bennett. 40 Several municipalities in Ontario, Canada, had been amalgamated and their debentures had been restructured with reduced interest rates to cope with the severe financial pressures of the great depression. The vires of the legislation was at issue—whether or not the provincial government had the constitutional authority to alter the terms of municipal bonds via legislation under the Canadian Constitution, otherwise known as the British North America Act 1867. 41 A commission had studied the circumstances of the municipalities and their debt obligations prior to the statute, and the report was presented to the court on the consent of both parties following objection and argument. Lord Atkin’s judgment state that ‘[t]heir Lordships do not cite this report as evidence of the facts there found, but as indicating the materials which the Government of the Province had before them before promoting in the Legislature, the statute now impugned[.]’
In Shenton v Tyler, Sir Wilfred Greene, MR, discussed the Second Report of the Common Law Commission when explaining the effect of amendments to the Evidence Act 1851 with respect to spousal privilege and witness compellability.
42
The central issue of the case concerned whether or not there was a common law spousal privilege prior to the Evidence Acts. In his decision, the Master of the Rolls said the following: the Common Law Commissioners presented their Second Report, in which, after examining the reasons for the rule making husbands and wives incompetent to give evidence either for or against one another, they recommended (at p. 13) that this rule should be abrogated ‘but that all communications between them should be held to be privileged.
43
[t]his recommendation was accepted by the Legislature and embodied in the Evidence Amendment Act, 1853…. The statutory privilege, therefore, extends only to communications made to the witness, and does not protect those made by the witness.
44
This case caught the attention of RM Jackson who wrote a note for the Law Quarterly Review to point out the divergence in the textbooks by Maxwell and Craies and the unsettled state of the law governing judicial reliance on commissioners’ reports. 45 In his discussion, Jackson sided with Craies, arguing that the courts had ‘a wide choice of material upon which it may draw for information under the mischief rule’. 46 Surprisingly, this was the only contemporary piece of scholarly literature addressing this particular issue.
The matter arose again 1946 in Weatherly v Weatherly. Evershed LJ said the following:
47
Our attention was drawn to the report of the Royal Commission on Divorce and Matrimonial Causes
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…. It was argued on the authority of the Eastman Photographic Materials case it is permissible for the court, in interpreting a statute, to refer to a Royal Commission report for the purpose of discovering what were the evils or defects the remedy of which might be taken to have been intended by the statute. Assuming, but without deciding, that it is permissible for us to refer to the report of this Commission, the document, in my judgment, so far from assisting the appellant, increases his difficulties. It is common ground between the parties, and is in their Lordships’ opinion the correct view, that judicial notice ought to be taken of such matters as the reports of Parliamentary Commissions and of such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed (cf. Ladore v Bennett), and both parties have referred to a number of paragraphs in the report of the Soulbury Commission of 1945.
Within the cases, there is a noisy but discernable shift from reluctance early in the century towards acceptance of the Solio exception by the 1950s. However, there is an additional factor which suggests that from the turn of the 20th century through to the 1950s many judges sided with Maxwell and Farwell J and believed that commissioners’ reports should not be considered: commissioners’ reports arose in prominent judgments infrequently—only once or twice in a decade. Even after the Privy Council’s decision in Pillaii v Mudanayake, which stated that the law was settled and commissioners’ reports were admissible, the matter was not revisited until 1964. It seems unlikely that the preponderance of judicial sentiment favoured the acceptance of such materials given how rarely they were dealt with.
There was noticeable change in judicial sentiment in the mid-1960s. In the famous case of Rookes v Barnard, 51 The Report of the Royal Commission on Trade Disputes and Trade Combinations was discussed by Lord Pearce to show the mischief of the Trade Disputes Act 1906. 52
In National Provincial Bank Ltd v Ainsworth, 53 a bank sought to repossess a house that a husband had transferred to a corporation. The house was occupied by the husband’s separated wife and their children. Lord Denning MR had cited a passage from the Royal Commission on Marriage and Divorce when deciding in favour of the wife at the Court of Appeal. 54 When the decision was reversed by the House of Lords, Lord Hodson acknowledged Denning’s reliance on the commissioners’ report. However, he did not criticise admissibility but merely noted that the report did not address the issue to be settled in this case: ‘as the Master of the Rolls himself pointed out the question is not here one between husband and wife but one which concerns the position of successors in title’. 55
In Letang v Cooper, the appellant relied on the Report of the Tucker Committee to argue that the limitation period for trespass ran for 6 years despite the fact that the limitation period for all actions in tort was only 3 years as set out in the Limitations Act 1939. 56 Lord Denning noted that the report recommended a longer period for trespass, but that ‘Parliament may, and often does, decide to do something different to cure the mischief….’ 57
In Cozens v North Devon Hospital Management Committee, 58 the Limitations Act was again considered, but with respect to the ability to apply to set aside an order granting leave. A commissioners’ report was discussed by counsel for the defendant in the Court of Queen’s Bench, and although it was not sufficiently relevant to merit consideration in the judgment, Thompson J noted that such documents were admissible although not for the purpose of interpretation. 59
Heatons Transport (St. Helens) Ltd v Transport and General Workers Union was a trade union case. Union members had been impeding the movement of company goods in furtherance of a trade dispute contrary to a court order. When faced with a contempt proceeding, the union argued that its shop stewards had been advised to comply with the order and that the stewards were acting outside of their duties when they interrupted company shipments. Passages from a commissioners’ report were cited by counsel in argument, and Roskill LJ found the material to be helpful:
60
Much valuable information on this subject will be found in the report of the Royal Commission on Trade Unions and Employers’ Associations (1968) (Cmnd. 3623), over which the late Lord Donovan presided. We were referred during the argument to many of the passages in that report.…The failure of unions generally to define, and indeed, circumscribe the functions of the shop stewards was the subject of criticism in the Donovan Report.
It is rather curious that these newer cases were not mentioned in the subsequent edition of Craies’ treatise published in 1971. Although ultimately vindicated by these cases, this treatise continued to repeat the claim about admissibility of commissioners’ reports based on the Solio case. 62 Maxwell’s treatises finally acknowledged the admissibility of commissioners’ reports in the twelfth and final edition, published in 1969. 63 The explanation closed with a cautionary quote by Lord Denning from Letang v Cooper: ‘You must interpret the words of Parliament as they stand, without too much regard to the recommendations of the committee’. 64
The change in the judicial attitude towards commissioners’ reports was explicitly acknowledged in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg. 65 The meaning of s 8(1) of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 was at issue, and in particular, whether a case settled in a foreign jurisdiction on the grounds that it was time-barred because of expiration of the limitation period meant that the same matter could not be considered substantively in the United Kingdom where the limitation period had not expired. This hinged upon whether the Act altered the pre-existing common law rules or merely added to them. The commissioners’ report that preceded the Act addressed the matter directly, and although Lord Diplock felt that the statute lacked ambiguity and the matter could be settled without considering the report (indeed, he criticised his fellow lords for focusing so much on the report 66 ), the other four Law Lords were in agreement that the report could be relied upon to uncover the mischief. 67
A draft Bill with commentary within the report proved to be a significant source of disagreement in Black Clawson. The majority felt that these materials should be excluded. While Lord Dilhorne declined to consider the Bill, he said ‘surely it is legitimate to conclude, as Greene M.R. did in Shenton v Tyler (supra), that Parliament had accepted the recommendation of the Committee and had intended to implement it’.
68
Lord Simon of Glaisdale was in agreement: the technique of a draft Bill with commentary is so common nowadays in Reports to Parliament as to excuse, I hope, some expatiation on the matter.…To refuse to consider such a commentary, when Parliament has legislated on the basis and faith of it, is for the interpreter to fail to put himself in the real position of the promulgator of the instrument before essaying its interpretation. It is refusing to follow what is perhaps the most important clue to meaning.
Legislative history in court in the 20th century
The Solio exception was for commissioners’ reports only, and all other types of legislative history, and particularly Hansard, were forbidden as aids to statutory interpretation from the turn of the 20th century. However, there are several instances when such materials appeared in prominent judgments.
In Henrietta Muir Edwards and others v The Attorney General of Canada,
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the Privy Council considered whether ‘qualified persons’ fit to be appointed senators in the Parliament of Canada, as provided for in the British North America Act 1867, included women.
71
Lord Sankey noted that: when upon May 20, 1867, the Representation of the People Bill came before a committee of the House of Commons, John Stuart Mill moved an amendment to secure women’s suffrage and the amendment proposed was to leave out the word ‘man’ in order to insert the word ‘person’ instead thereof. See Hansard, 3rd series, vol. 187, col. 817.
72
In R v Commissioners of Customs & Excise,
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s 46 of the Finance (1909–1910) Act 1910 was at issue. This provision enabled a person holding a liquor licence to recover a portion of the increase in the cost of a license from a landlord and liquor supplier ‘proportionate to any increased rent of the licensed premises, or increased process of intoxicating beverages supplied[.]’ In 1926, the appellant sought to recover based on annual increases in rent for the duration of his tenancy which commenced in 1911. The statute was enacted in April 1910 but applied to increases imposed from 1 October 1909. The respondent argued that the statute was only meant to apply to increases that occurred between October 1909 and the date that the statute was enacted, but not afterwards. Lord Blainsburgh felt compelled to examine the legislative history: It has now been mooted that s. 46 found its place in the statute mainly that by it the position as between the licence holder and the brewer might be adjusted in respect of that long antecedent period, so that its operation was really spent with the expiration of the licensing year current at its passing. I therefore thought it right for my own satisfaction to examine the Finance Bill of 1909–10 as it was presented to this House in 1909 and then rejected, in order to see whether §46 had any counterpart in that Bill. And it may now be conveniently stated that its ss. 43–47 are in terms identical with those same sections of the present Act. In other words, if the Finance Bill of 1909 had in ordinary course been duly passed in 1909 in the form in which it left the House of Commons it would have presented in relation to s. 46 precisely the same problem that that section presents to your Lordships now.
77
In re C, an Infant, 78 a husband and wife sought to adopt the wife’s illegitimate 19-year-old daughter from a prior relationship. The Adoption of Children Act 1926 prohibited the adoption of a child if the potential parent was less than 21 years older than the child. Both husband and wife were less than 21 years older. There was discretion to make exceptions for those ‘within the prohibited degrees of consanguinity’ which enabled ‘blood’ relatives to adopt. The father lacked such relations.
In his decision, Luxmoore J considered a variety of preparatory materials including the Bill in its original form, amendments proposed during passage, as well as statements made in the House of Commons:
In the debate in support of the amendment, Major Hill said: The Bill is mandatory, and so no order can now be made in any case unless the adopter is 21 years older than the infant. No discretion whatever is given to the court. Take the case of two brothers. Suppose that one dies and leaves a child of 6 years of age. Suppose there is a younger brother 25 years of age. No power can allow that brother to adopt his nephew. That is a case that may occur and it certainly ought to be provided for.
79
These cases are exceptional. The rule prohibiting recourse to legislative history was followed, for the most part. However, it is apparent that there were a few judges who were either misunderstood the breadth of the rule prohibiting legislative history or who disagreed with the strictness of it and felt comfortable making exceptions (and admittedly, the latter seems more probable). These are not obscure cases. All of them can be found in Incorporated Council reporters. The often repeated claim that the rule was strictly followed from the late 18th century through to the case of Pepper v Hart in 1992 must yield a bit of ground. 80
Reference was also made to Hansard in support of a practice note which was promulgated to correct some misapprehension which appears to have arisen about the exercise of the power conferred by Section 44 of the Criminal Justice Act 1948 [concerning costs]…. It was never intended, and it would be quite wrong, that costs should be awarded as of course to every defendant who is acquitted. Its use should be considered by the court on its own merits. I may add that a reference to Hansard (449 HC Deb 5s 1294) shows that this is in accordance with what the Attorney General stated in Parliament was the intention of the clause when it was being considered in committee.
81
The demise of the exclusionary rule
Black-Clawson revealed how commissioners’ reports were putting the exclusionary rule under pressure in the 1970s, and there are other cases worth noting. In Warner v Metro Police Commissioner, Lord Reid considered whether ‘possession’ in s 1 (1) of the Drugs (Prevention of Misuse) Act 1964 was a strict liability offense and said the following, in dissent:
82
the layman might well wonder why we do not consult the Parliamentary Debates, for we are much more likely to find the intention of Parliament there than anywhere else. The rule is firmly established that we may not look at Hansard and in general I agree with it,…but I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other. This matter was raised in the House of Commons on June 3, 1964, when the Solicitor-General gave an assurance, repeating an earlier assurance, “that a conspiracy to corrupt public morals would not be charged so as to circumvent the statutory defence in subsection (4)”. (Hansard, vol. 695, col. 1212)
85
Lord Diplock concurred with Lord Reid’s reasoning in Knuller, albeit more briefly. He felt that arguments to the effect that Parliament had accepted Shaw’s case ring hollow in light of the disclosure of the assurance given to Parliament by a Law Officer of the Crown in the course of debates on the amending Bill that a conspiracy to corrupt public morals would not be charged so as to circumvent the statutory defence in section 4 of the Act of 1959—which was precisely what had been done.
86
We are, of course, entitled to look at the mischief which the Act was intended to remedy. I take it as described on second reading in the House of Commons, by the Minister. (Hansard, Parliamentary Debates, Commons, February 28, 1964, Column 784): As a result, therefore [of Hewison’s case
88
] the situation has been reached when local authorities have simply not felt it open to them to refuse permits for such premises. Amusements in the shape of gambling machines are now installed under permits in a whole variety of places.…My Bill seeks to remedy this situation by strengthening the hands of local authorities to refuse permits for such premises. On the other hand, everything we try to do in the Bill is completely within the intention of Parliament as expressed during the Act of 1963. We have not gone one whit beyond those intentions. Accordingly, Parliament passed the Act of 1964. Section 3 (1) was passed so as to do away with Hewison’s Case [1963] 1 Q.B. 584 and give to the local authorities the power which Parliament always intended they should have. It gave them the power to impose conditions. Parliament expressly said that the provisions of the Act of 1959 were not to apply to cinematograph films shown in public. It did so by the proviso to section 1 (3) (b). Why did Parliament do this? I propose to look at Hansard to find out. I know that we are not supposed to do this. But the Law Commission looked at Hansard: see their Report, paragraph 3.46, p.88. So did Lord Diplock in Knuller’s case [1973] AC 435, 480. So I have looked at Hansard to refresh my memory. In the Lords Viscount Kilmuir L.C. referred to the four forms of publication which were excepted from the Bill. First, the live performance of stage plays; secondly, the cinema; thirdly, television; and fourthly, broadcasting. He said that the promoters of the Bill—it was a private member’s Bill—desired to leave those four out of the Bill and to allow the common law to apply to them. The government were content that this should be so. The Lord Chancellor said that they “have in practice not been prosecuted in the past and…are most unlikely, so far as can be contemplated, to be prosecuted in the future”. See Hansard (House of Lords), June 22, 1959, vol. 217, col. 74. In the Commons the Solicitor-General added that those four forms “are subject, in fact, to censorship either by public authority or internal control by the Lord Chamberlain, the Board of Film Censors, or whatever it may be”: see Hansard (House of Commons), July 22, 1959, vol. 609, col. 1446. In Race Relations Board v Charter [1973] A.C. 868, 899–900, I speculated on the probability that during the debates in Parliament on the Bill which led to the Race Relations Act 1968 the question was raised whether the Act extended to working men’s clubs. If so, it must have been in contemplation that such clubs were bound together in a union giving rise to associated membership: this is a matter both of common knowledge and of official cognisance.
89
In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings.
91
In R v Local Commissioner for Administration, ex parte Bradford Metropolitan City Council,
92
Lord Denning sought to determine the meaning of ‘maladministration’ in s 34 (3) of Local Government Act 1974: The construction of that word is beyond doubt a question of law. According to the recent pronouncement of the House of Lords in Davis v Johnson, we ought to regard Hansard as a closed book to which we as judges must not look.…By good fortune, however, we have been given a way of overcoming that obstacle. For the ombudsman himself in a public address to the Society of Public Teachers of Law quoted the relevant passages of Hansard as part of his address: and Professor Wade has quoted the very words in his latest book on Administrative Law. And we have not yet been told that we may not look at these writings of the teachers of law.…I hope therefore that our teachers will go on quoting Hansard so that a judge may in this way have the same help as others have in interpreting a statute.
93
Around this time, a belief was spreading that parliamentary privilege, as set out in the Bill of Rights, had provided a long-standing statutory prohibition to the presentation of Hansard in court. Farrar and Dugdale, for example, claimed that: until recently there were limitations on the extent to which judges could even have access to Hansard. However, by resolution of the House of Commons on October 31st 1980, a general permission was granted and it is now no longer necessary to petition the House for leave to place Hansard before the court.
94
It was perhaps inevitable that this issue would be raised. Article 9 of the Bill of Rights 1689 stipulates that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament’. The purpose of this provision was to ensure that MPs would face neither criminal nor civil proceedings because of things said in the House of Commons (as had happened prior to the Revolution of 1688). However, conceptually, it is also tied to the sovereignty of Parliament. The nature and extent of privilege was vague. With a preponderance of belief that Hansard was inadmissible, there would be no reason to consider the matter within the context of judicial interpretation. It was now a potential impediment that would have to be addressed.
The next significant case in which Hansard was addressed was Hadmore Productions v Hamilton.
98
Video programs created by Hadmore Productions had been prevented from being broadcast because the company was not included on a list of union-approved production companies, despite having received a letter of assurance from the union organiser that the programs would meet union standards. At issue was whether or not the ‘blacking’ was pursuant to a ‘trade dispute’ as defined in s 29 (1) of the Labour Relations Act 1974. If not, Hadmore Productions could seek damages. Lord Denning decided that the blacking was not pursuant to a trade dispute, and said the following about Hansard: In most of the cases in the courts it is undesirable for the Bar to cite Hansard or for the judges to read it. But in cases of extreme difficulty, I have often dared to do my own research. I have read Hansard just as if I had been present in the House during a debate on the Bill. And I am not the only one to do so. When the House of Lords were discussing Lord Scarman’s Bill on the Interpretation of Legislation on 26th March 1981, Lord Hailsham LC made this confession (418 HL Official Report (5th series) col 1346): It really is very difficult to understand what they [the Parliamentary draftsmen] mean sometimes. I always look at Hansard, I always look at the Blue Books, I always look at everything I can in order to see what is meant and as I was a Member of the House of Commons for a long time of course I never let on for an instant that I had read the stuff. I produced it as an argument on my own, as if I had thought of it myself. I only took the trouble because I could not do the work in any other way. As a matter of fact, I should like to let your Lordships into a secret. If you were to go upstairs and you were a fly on the wall in one of those judicial committees that we have up there, where distinguished members of the Bar…come to address us, you would be quite surprised how much we read…The idea that we do not read these things is quite rubbish…if you think that they did not discuss what was really meant, you are living in a fool’s paradise. Having sat there for five years, I would only say: “I entirely agree and have nothing to add.”
99
Once again, Lord Denning was rebuked by the House of Lords. Viscount Dilhorne spoke for the court. He affirmed the ruling in Davis v Johnson, and indeed, he used his opinion in Hadmore to engage in a judicial dialogue in obiter to address the fact that counsel did not present Hansard in Davis v Johnson and that Lord Denning had done so of his own volition: [u]nder our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is.
100
The draft Regulations of 1983 were presented to Parliament as giving full effect to the decision in question. The draft Regulations were not subject to the Parliamentary process of consideration and amendment in Committee, as a Bill would have been. In these circumstances and in the context of section 2 of the European Communities Act 1972 I consider it to be entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft was presented by the responsible Minister and which formed the basis of its acceptance.
102
[i]t is comforting indeed to find, from the statement made by the Minister to which my noble and learned friend has referred, that this construction does in fact conform not only with what clearly was the parliamentary intention but also with what was stated to be the parliamentary intention.
104
The opinion of Lord Brown-Wilkinson attracted the concurrence of the majority. The issue of privilege was addressed, and it was affirmed that interpretation did not involve ‘questioning’ or ‘impeaching’ the freedom of speech in Parliament. 107 With respect to Hansard, a rule was set out to carve out a narrow exception. There were three requirements: statutory text that was ‘ambiguous or obscure or the literal meaning of which leads to an absurdity’; a statement from the record which ‘clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words’; and the statements must come from ‘the Minister or other promoter of the Bill’, which is to say, someone bearing responsibility for the Bill.
Lord Oliver declared himself a ‘somewhat reluctant convert’ 108 while the remainder, excepting Lord Mackay, endorsed the new rule. Lord Mackay disapproved of the rule because of the impact on the cost of litigation.
This case and the rule delimiting the exception to the exclusionary rule have subject to a significant amount of scholarly debate. 109 Thus far, the decision has not been reversed, and the subsequent treatment of Hansard reveals that this case put an end to the rule against legislative history. There are a number of cases in which Hansard was admitted and considered in subsequent cases without considering the rule in Pepper v Hart. 110
International treaties and preparatory materials
The decline of the prohibition on legislative history coincided with the decline of an analogous rule that governed legislation enacted in compliance with international treaty obligations. For much of the 20th century, the rule was strictly applied: in the absence of ambiguity, judges could only consider the statute, and not the treaty; and under no circumstances could the preparatory materials be consulted. The case of Ellerman Lines v Murray reiterated this English rule, and it drew international criticism. 111 In this case, the plain meaning of s 1 of the Merchant Shipping Act 1925 was applied with the result that seamen who became unemployed because of a shipwreck were entitled to 2 months’ wages regardless of how many days of work were actually lost because of the shipwreck. The convention that motivated the Act required compensation for loss only. 112
It was well established on the Continent that the underlying treaty and the preparatory materials were acceptable as aids to interpretation regardless of ambiguity, and there was concern within the international legal community that the harmonisation of laws that treaties were intended facilitate would be thwarted if the modes of interpretation remained different.
Lord Denning had attempted to bypass Ellerman Lines and consult treaties to interpret the implementing statutes regardless of ambiguity since the 1960s, beginning with Salomon v Commissioners of Customs and Excise. 113 Despite his efforts, it wasn’t until Buchanon & Co Ltd v Babco Forwarding and Shipping Ltd 114 that the House of Lords began to relax their approach. This case did not establish a broad exception but it did permit reliance on international agreements that were incorporated by reference in the statute. Consideration of foreign language versions was only permissible in cases of ambiguity. 115
This stance was loosened further in Fothergill v Monarch Airlines Ltd., albeit in obiter.
116
The issue of whether or not items that had gone missing from a suitcase during travel were ‘damage’ or ‘loss’. Claims for damage were time-barred by the Carriage by Air Act 1961, the appellant could seek recovery for loss. The French version of the treaty was authoritative, and the issue was settled through reliance on the French text and French jurisprudence. However, Lord Denning had considered the preparatory materials at the court below, and the Law Lords weighed in. The majority endorsed the view expressed by Lord Wilberforce, that, in the interests of harmonising interpretive practices with other parties a treaty: it would be proper for us…to recognise that there may be cases where such travaux préparatoires can profitably be used. These cases should be rare, and only where two conditions are fulfilled. First, that the material involved is public and accessible, and secondly, that the travaux préparatoires clearly and indisputably point to a definite legislative intention.
117
This development correlates neatly with the decline of the rule against parliamentary documents. They are analogous issues: they depend upon the same underlying reasoning. Thus the issues are intertwined. Surely the English judiciary would have been more willing to harmonise with continental practices when dealing with treaty-based legislation had the rule with respect to domestic-rooted legislation not been so deeply entrenched.
The decline of the rule in other English-speaking common law jurisdictions
Given the role played by Lord Denning, and the strong presence of labour cases in the decline of the rule in the United Kingdom, it is tempting to seek to understand this phenomenon through the lens of political ideology. Denning was a Conservative appointee and an activist judge. It has long been alleged by critics of the practice that legislative history is the tool of activist judges. The problem with this line of analysis, though, is that judicial activism is not restricted to one side of the political spectrum. Interpretive methods, whether loose or restrictive, will assist and frustrated both sides of the political spectrum. 119 By focusing on one or the other side of the political divide, one misses the nature of the change that occurred. Although Denning led the charge against the rule, what is more significant is that the other senior judges in the United Kingdom began to agree with him on this particular methodological matter. This is not about political dispositions. It is about judicial conservatism and rule formalism yielding in the face of repeated demands for more flexibility to consult background documents when interpreting legislation.
The embrace of this rule had been uniform throughout English-speaking common law jurisdictions (with the exception of the United States). 120 Over the course of the 20th century, many of these jurisdictions eliminated appeals to the Judicial Committee of the Privy Council and established domestic courts of final appeal. For these jurisdictions, UK jurisprudence remained persuasive, but over time the domestic courts acquired the confidence to establish interpretive autonomy.
As Lord Browne-Wilkinson had pointed out in Pepper v Hart, both Australia and New Zealand had moved more quickly than the United Kingdom. They began to admit Hansard in the 1980s, and this had occurred without adverse consequences, according to his Lordship. In Australia, the Acts Interpretation Act 121 was amended in 1984 to permit reliance on Hansard with an important restriction—it could not be used to contradict the plain meaning of a statutory provision. The modification was made following a seminar on statutory interpretation attended by senior members of the legal community. 122 Judges in New Zealand began to admit Hansard in the 1980s, and a Law Commission report published in 1990 stated that there never had been an exclusionary rule in force there. 123
The Supreme Court of Canada developed a series of narrowly construed exceptions to the prohibition of Hansard between 1976 and 1982 which were treated with caution and scepticism by the lower courts. Arguably by the mid-1990s, and certainly by 1998, the narrow exceptions were replaced by an open-ended willingness to consider Hansard. 124
Hong Kong began to admit Hansard in 1997 as a result of Pepper v Hart, according to a Hong Kong Law Reform Commission Report. 125 The courts in Zimbabwe followed Pepper v Hart in the 1990s. The Parliament of Zimbabwe followed up on the matter by amending the applicable Interpretation Act in 2002 by adding a provision that is strikingly similar to the provision added to the Australian Acts Interpretation Act. 126
The one jurisdiction in which judges have been resistant to embrace this change is Ireland. The High Court refused to consider a ministerial statement in Crilly v Farrington in 2002, although it was conceded that there was no common law rule forbidding such recourse. 127 Following this case, Irish courts have been reluctant to consider these kinds of materials. 128
Most common law nations set aside the rule within loosely similar time lines and this is a curious sociological phenomenon. The reasons that resonated in the United Kingdom were felt elsewhere as well despite the very different political contexts. In jurisdictions such as India, the imposition of the common law was part of a larger process of subjugation and economic exploitation; while places such as Canada and Australia regarded the common law as part of their great European democratic heritage (with all of the concomitant overtones of racialised enlightenment values). 129 There was a form of incrementalism at work. That some jurisdictions moved more quickly than the United Kingdom suggests that the courts were not simply following UK jurisprudence. Those jurisdictions that did follow the UK jurisprudence did so voluntarily and not because of stare decisis. The arguments for and against the prohibition of Hansard had not changed, 130 yet there was an emerging consensus that the arguments in favour of the rule had lost credibility. There was something about the nature of the times—a common law zeitgeist—that made the change seem reasonable to the senior members of these various legal communities around the same time, despite the extraordinary differences in the cultural and political contexts.
The decline of the prohibition in context
It is tempting to conclude that, over the course of the 20th century, the increased availability of these materials led to more members of the legal community learning about their usefulness and that the accumulation of cases that brought about the decline and setting aside of the prohibition was inevitable. However, there is an important factor at work: the judges acquiesced, and their acquiescence was not inevitable. If it was, the prohibition would have been set aside within all English-speaking common law jurisdictions, and there are two important exceptions: Ireland, where the judiciary have continued to feel the force of the reasons for the rule, and the United States, where the federal Supreme Court has moved in the opposite direction—from permissive use at the turn of the twentieth century towards prohibition. A formal rule has not been put in place; however, there has been a significant decline in the amount of legislative history received and considered in argumentation at the Supreme Court over the past 30 years. 131 The decline is due almost entirely to the efforts of Justices Thomas and Scalia, the so-called textualist judges. Since Justice Scalia’s passing there have been two new appointments to the bench—Justices Gorsuch and Kavanaugh. They, too, are textualists and share Justice Scalia’s determination to reject legislative history. 132 With sufficient consensus, the prohibition could be reinstated as a formal common-law rule (or set of rules). Meanwhile, lawyers are finding it less useful to include such materials in their submissions. Why take time to include these materials when several of the judges will refuse to read it? So even if no formal rule is put in place, an informal rule seems likely to emerge if it hasn’t already.
With the counterexamples in mind, we are left with what appears to be a phenomenon rooted in groupthink (although in a benign rather than a pathological sense). For much of the 20th century, the high-ranking judges throughout the various English-speaking common law jurisdictions (with the two exceptions) believed in the efficacy of the prohibition. Then, for reasons which are not entirely obvious, a growing number of high-ranking judges in most, but not all, of these jurisdictions began to find the justifications for the prohibition wanting in the 1960s, 1970s and 1980s.
The reasons for the rule
A number of reasons have been put forward to justify the rule, and these reasons have an evolutionary history of their own. During the period of time when the prohibition was accepted and entrenched, only brief reasons were provided in support. In the often cited and generally misunderstood case of Millar v Taylor, the rule was justified by the rather obscure reason that ‘the history of the changes it [ie a Bill] underwent in the house where it took its rise…is not known to the other house, or to the sovereign’. 133 Another relatively early case argued that recourse ‘is not one of the modes of discovering the meaning of an Act of Parliament recommended by Plowden, or sanctioned by Lord Coke or Blackstone’. 134 One often-cited case simply asserted that the legislative history is ‘wisely inadmissible’. 135 Towards the turn of the 20th century, comparisons were made with the parole evidence rule with respect to wills and contracts, claiming that such evidence is entirely unreliable. 136
In the early editions of the classic treatises on statutory interpretation that were published in the late 19th century, the emphasis was on explaining the law. They tended to quote brief passages from a variety of cases with added commentary to elucidate the contours of the rule, and no attention was devoted to the reasons for the rule. 137 The value of the rule was regarded as self-evident.
Journal articles from the 1930s through to the 1950s, whether critical or supportive of the prohibition, tended to provide some explanation for the rule. However, none of the authors attempted a comprehensively treatment. It was in such sources as the Law Commission Report of 1969, 138 the follow-up Renton Report on the Preparation of Legislation, 139 subsequent journal articles, and of course, landmark cases such as Pepper v Hart, where the matter received more thorough consideration. One of the most comprehensive collections of arguments in favour of the prohibition can be found in a chapter of Reading Law. 140
The reasons for the rule can only be categorised loosely. There is some intertwining and overlap. One collection of justifications centres around the issue of comity between the judiciary and legislature. 141 Generally speaking, it has been argued that the prohibition maximises the harmony between the legislative and judicial branches. Within this class of justifications, there are a number of specific sub-reasons.
One of the more often-cited arguments is epistemological in nature: the separation of powers requires that the courts do not examine legislative history because the legislature enacts as a whole, and individual members’ understandings are anecdotal. 142 This can be buttressed by claims to the effect that there is no reason to believe that, if a minister made a statement about the meaning of a provision in proposed legislation, his colleagues were paying attention; and if they were, there is no reason to believe that they were motivated by the statement. 143 There is equally no reason to believe that members of the legislature read a related commissioners’ or committee report; and again, if so, there is no reason to believe that they were influenced by it. This type of reasoning is sometimes posited as being analogous to the parole evidence rule in contract law. A related sub-class of argument holds that members in favour of a bill are akin to salesmen, and their words cannot be trusted. 144
There is also a constitutional argument based upon the separation of powers. It is claimed that, by deferring to members of the legislature, judges are violating the ‘constitutional requirements of nondelegability, bicameralism, presidential participation, and the supremacy of the judicial interpretation in deciding the case presented’. 145 This is couched in terms that pertain to the United States, although the rule has also been justified via the constitutional requirement of the separation of powers in the United Kingdom. As Kavanagh has noted, ‘the two most prevalent and recurrent fears surrounding the rule in Pepper v Hart [are] both grounded in separation of powers concerns’. 146 In the simplest formulation of the separation of powers argument, the courts should not be deferring to the legislators when interpreting legislation, and least of all, to specific members of the executive.
Other justifications based on the separation of powers tend to focus on the incentives created. It has been argued that recourse jeopardises freedom of speech in Parliament by subjecting the statements of lawmakers to criticism in court, which, in the United Kingdom can be regarded as a violation of Parliamentary privilege. 147 Along a similar vein, there is an argument which holds that judicial interpretation must be insulated from political controversy. 148 Political controversies are normal and appropriate for the legislature to deal with; and recourse to legislative history necessarily engages judges these controversies. Recourse is therefore corrosive to the rule of law.
Another incentive-based argument holds that recourse to legislative history will encourage members of the legislature to deliberately seek to influence the interpretation of legislation through floor statements rather than providing good-faith statements in debates. 149 Thus, recourse is regarded as corrosive to the legislative process and detrimental to the reliability of legislative history as an interpretive aid. Accordingly, recourse is regarded as self-defeating because it renders the material unfit for purpose. 150
There is an argument that concerns the incentive for best practices. If legislative history is a permissible consideration in court, the lawmakers may decide that the supplementary materials provide clarity and pass bills that are textually problematic or insufficient on their own; whereas if there is no recourse, legislators will be encouraged to ensure that the legislation is complete, clear, and self-contained. 151 Meanwhile, judges may not regard the legislative history in the same way that the legislators did, thus leading to unpredictable outcomes. This reasoning can also be couched as a rule-of-law matter: citizens should be able to consult a statute to know the law without the need to consult legislative history.
There is a class of arguments that is economic in nature. The underlying claim is that recourse adds complexity and expense while adding insufficient value in return. If legislative history is permissible, it imposes an undue burden on the lawyer who risks malpractice if the legislative history is not exhaustively researched. 152 At the same time, it imposes significant costs on the client. This includes not only cost for the lawyer’s research time but also the time spent in court considering and responding to the material. Meanwhile, benefits in terms of useful legal argumentation accrue so infrequently that the practice cannot be justified.
Finally, 153 there is one more epistemological justification. It has been argued that the inevitable variety of opinions put forward in committee reports and in floor statements enable judges to decide any which way see fit. This argument has been explained by using the analogy of a cocktail party—that the judge can look out over the crowd and choose his or her friends. 154 As a result, interpretive flexibility is increased, and indeed, the judge may be induced to put an interpretation upon a provision which the words alone could not possibly bear. Worse still, a judge might disregard the statute altogether and rely only on the legislative history.
There are, of course, opposing arguments. The claim that legislators do not have a collective intent and that reports and individual explanations do not reflect the whole of the legislature conflates that which confers the status of enactment with that which gives meaning to legislation. 155 A counterargument has been put forward by Solan, who argues that groups often delegate tasks. 156 That members vote in support of a bill without knowledge of the specifics that were determined by a person or small group of people who were responsible for if does not negate the relevance of their efforts. This does not justify reliance on any and all floor statements. It does provides a reason why committee reports and statements by informed members might be relevant. If, for example, a report contained recommended statutory provisions which were enacted in legislation word for word, it is reasonable to assume that the members who voted in support were deferring to the recommendations in that report.
The argument about unconstitutional delegation of interpretive authority is based in the presumption that judges are abdicating their role as interpreters and deferring to the members of the legislature when they consider legislative history. To accept this argument, one must assume that judges are not treating these materials as an aid to interpretation; but rather, deferring to them as binding statements about the meaning of legislation. If the judge consults but retains the authority to disagree, this is not a fair assessment of the interpretive process.
A similar assumption is made when judges are accused of ignoring the text of the statute and looking to the legislative history instead. A judge would be committing a form of malpractice in so doing, because she would be treating the legislative history as legislation rather than an interpretive aid. No reasonable advocate for the use of legislative history would suggest that judges should do this. 157
Generally speaking, the claim that recourse limits freedom of speech in the legislature does not seem to square well with the American experience. Legislative history has been permissible in parts of the United States since the middle of the 19th century and throughout the nation by the turn of the 12th century. There is no evidence to suggest that members were reluctant to speak honestly as a result.
One could argue, using Pepper v Hart as an example, that recourse does limit freedom of speech. Suppose that the member had deliberately explained the tax bill in that case in a manner favourable to the taxpayer when he believed that the courts would interpret in favour of the government once the bill was passed. Arguably, this prevents a member from lying about a bill to sell it, so to speak. However, if the misrepresentation is obvious, it is not clear that judges will abide by the statements made in the House. It would only appear to have force if the misrepresentation is subtle enough to appear credible. This is precisely the kind of limitation on parliamentary privilege that has been sanctioned by the courts in Pepper v Hart and subsequently by parliamentary committees on privilege. There is some irony here. One could question the democratic bona fides of such a freedom. Under such circumstances, recourse to Hansard becomes a mechanism to compel integrity when a bill is being promoted.
Although members of the House of Commons gave little thought to the use of Hansard as an interpretive aid when they altered of the rules governing Parliamentary privilege in the 1980s, the issue has increased in importance over the past two decades. Each subsequent committee report has had more to say about the potential for infringing parliamentary privilege, and recently the Office of the Speaker has taken the highly unusual step of intervening in court cases in which privilege was been implicated. 158 In the interventions, counsel for the Speaker has acknowledged that the exception in Pepper v Hart is consistent with, and not a violation of, parliamentary privilege. The Joint Committee on Parliamentary Privilege found the usage to be unobjectionable in their report in 1999; 159 and while the 2013 report was more cautionary, it was accepted that, so long as Courts abide properly by the rule and reasoning put forward in Pepper v Hart, privilege is not infringed. 160
The notion that members of the legislature would deliberately attempt to influence judicial interpretation via floor statements requires a decidedly judiciary-centric view of lawmakers to be credible. Members of a legislature have a variety of interests to manage when they debate Bills, and it is not self-evident that the use of their statements in judicial interpretation is at the forefront. Meanwhile, by deliberately stating a bad faith interpretation to influence the courts, that person will also put the self-serving interpretation before the other members of the legislature to either accept or oppose. MPs present in the House will hear the statements for certain while judges will only potentially consider the statement and they will not necessarily interpret in accordance with such statements. Given the risks and rewards, it is not clear that such behaviour will be incentivised. Furthermore, judges are accustomed to assessing credibility, and it is not self-evident that they will be persuaded by statements intended to mislead.
There is also a lack of evidence suggesting that recourse has fostered more judicial disdain for legislation in the United Kingdom after Pepper v Hart. With or without legislative history, judges must abide by legislation. When researching legislation, legal scholars would be remiss if they neglected these records; and personally (and therefore strictly anecdotally), I have been impressed with much of what I have observed within the parliamentary proceedings, particularly in the work of committees. It is not a foregone conclusion that examining the record will incite disdain.
The notion that recourse to legislative history unnecessarily involves judges in politicking can be doubted for the simple reason that public perceptions about politicking will be driven by external forces, and in particular, newsworthiness, rather than the details involved in the determinations. 161 The refusal to consider legislative history did little to insulate judges from accusations of politicking in England when dealing with the infamous trade union cases. 162 Meanwhile, few judges have attracted such intense accusations of political bias as Justice Scalia, despite his steadfast refusal to consult legislative history. 163 How judges become entangled in political disputes has far more to do with the political nature of the legal determination before the court than it does with the types of evidence proffered in argumentation.
The notion that arguments arising out of legislative history will point in multiple directions and the judge can therefore choose those statements and reports that she agrees with and disregards those that she disagrees with implies that legislative history is fraught with chaos. However, in this respect, legislative history is no different from any other evidence of meaning that might be presented to the court (and, indeed, any other type of evidence concerning any disputed legal or factual matter). Counsel for the plaintiff and the defendant select their friends at the cocktail party from among that which is permissible when constructing the arguments to be presented in court. The judge, in turn, chooses her friends to decide. A prohibition on legislative history does not eliminate the cocktail party. It only makes the party smaller. The point being made here: if sources of argument that tend to point in multiple directions ought to be prohibited, then there are few sources of evidence, if any, that a court should be permitted to consider.
There also is room to doubt the notion that, by permitting legislative history, the legislators will be tempted to pass statutes that are incomplete and require the support of legislative history to be understood. Indeed, to accept this argument, one must adopt a rather cynical view of legislators. Drafting for the British government is done by the Office of Parliamentary Counsel, and for the OPC, clarity is a matter of policy. 164 The office has earned a reputation for professionalism since it was established in the 1869. There have been occasional lapses, but to suggest that lax drafting could occur because it is possible to defer to legislative history is not credible. If an extrinsic document is required to understand a particular piece of legislation, it will be incorporated by reference. 165
When it comes to the clarity of legislation, it is important to keep in mind the process of scrutiny and amendment during passage through the houses. During this process, a variety of factors might come to bear, including the need for vagueness to secure assent, that may result in textual deficiencies. When Nourse and Schacter studied the legislative process within the Senate Judiciary Committee, they found that staffers were well-trained, legally. However, the demands of the legislature meant that other competing factors became more important: Staffers’ drafting choices seem to be driven not by issues of legal dexterity but by the demands of a competing set of virtues—what we are calling ‘constitutive virtues’. Constitutive virtues…tend to prize the institutional values of legislatures: action and agreement, reconciling political interests, and addressing the pragmatic needs of those affected by legislation.
166
While it is true that a lay person would have difficulties navigating legislative history, it is implausible to suggest that statutes would be self-contained without it. It is a fact that statutes exist within the entire backdrop of the law and must be interpreted within a larger context. To give just one example, the suggestion that a residential tenant in England could grasp the relevant matters pertaining to land law by consulting the available legislation is laughable. With or without recourse, people are regularly cautioned to consult a legal professional when they have a legal problem; and legal professionals often dispense highly nuanced, probabilistic answers to specific questions because the law is not entirely clear for any of a number of reasons including relevant cases. Case law poses at least as much challenge to a lay person as legislative history.
The claim that legislative history imposes an undue burden on lawyers carried much more weight in the past. In the 19th century, lawyers in remote locations would have found it difficult to access materials which were available, if at all, at major centres. Yet, such documents have long been required in court. Historically, judges were not required to take judicial notice of private acts. They had to be proved, which is to say, the party relying on a private act had to provide evidence that the statute was duly enacted. In the early- to mid-19th century, ‘[t]he regular proof of private acts of Parliament is by an examined copy, compared with the original in the Parliament Office at Westminster’. 167 In the United States around this time, a state court judge had ruled that ‘the journals are the highest evidence of the fact of the enactment of a law, or of any other fact connected with its passage’. 168 It is difficult for us today to imagine how lawyers met their clients’ needs without the benefit of modern communications technology but they most certainly did. They could hire a solicitor or clerk in the relevant centre and receive the documents by mail.
The available catalogues, which date back to the early the nineteen hundreds, indicate that libraries at the Inns of Court contained extensive collections of parliamentary records, including debates in the houses. 169 Some of the regional law societies might have had them in their collections as well. Members of the legal community could access these materials if necessary. Meanwhile, in the present, when much of the material is available online, the burden of researching legislative history is certainly far less onerous.
It is a fact that trials have become longer over time. In the Victorian era, the Judicial Committee of the House of Lords regularly heard two cases in a day. 170 The quantity of documents presented was modest and there was more reliance on oral argument. Today the volume of documentary submissions can amount to thousands of pages. No doubt, computers have enable the generation of far more documents than could ever be produced in the past, and it makes for a potent cocktail when coupled with the fact that lawyers have an incentive to raise every potentially relevant argument. As a result, they might present rather tenuous evidence from the Parliamentary records if such material is permissible; however, this will also happen for all other types of admissible materials. In the light of this, is it credible to claim that a general prohibition of legislative history would reduce court costs meaningfully? It is, after all, an empirical matter and there are no empirical studies from which to draw. In many instances, lawyers may seek to work within the client’s budget regardless of what materials are permissible. The impact of the prohibition on costs might therefore be more modest than the economic argument suggests.
Post-Pepper v Hart jurisprudence
In the wake of Pepper v Hart, Hansard has been a source of controversy and disagreement in the higher courts in the United Kingdom on occasion as the rule has been fleshed out and judges have grappled with the nature of this interpretive aid. Generally speaking, judges have been comfortable relying on other types of legislative history but have avoided reliance upon Hansard when possible. 171 There have been instances when particular judges refused to consider Hansard because they were doubtful of the efficacy of the rule in Pepper v Hart. 172 There have also been instances when judges disagreed about the efficacy of reliance on Hansard in particular cases, 173 although the preponderance of sentiment thus far has tended to favour retaining the rule. Meanwhile, the meaning of the ‘exception’ has been fleshed out more fully, although not without raising some difficulties.
It was Lord Steyn who championed the notion, which has gained some traction, that the rule operates as a form of executive estoppel. 174 By this understanding, the rule in Pepper v Hart ‘is available to prevent the executive seeking to place a meaning on words used in legislation which is different from that which ministers attributed to those words when promoting the legislation in Parliament’.—the executive is estopped from asserting legislation in their own favour if they have clearly stated in Parliament that they intend the law to be interpreted in a manner that is contrary to their interests. 175 As Vogenauer has pointed out, this is problematic. 176 Does a statute have one meaning if members of the public seek clarity from the courts, and another when the executive seeks to enforce a meaning contrary to that which they put forward to secure passage of the bill? Or is it that the assertions provide clarity to the meaning of the statute, and it is an aid, full stop, rather than a form of estoppel? Surely a statue must have one meaning for all purposes.
It would be fair to say that Pepper v Hart has proved to be a wedge. Once it became acceptable to consider Hansard under the relatively narrow exception set out in this case, further exceptions have been allowed. The permissibility of reliance on Hansard is inherently connected with the permissibility of recourse to the larger collection of documents produced by Parliament including commissioners’ reports, committee reports, white papers and so on. Such recourse is available when interpreting legislation and also when assessing the proportionality of legislation to test for compliance with the Human Rights Act 1998. Lord Nicholls put it this way: as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the ‘proportionality’ of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the ‘mischief’) at which the legislation is aimed. This may throw light on the rationale underlying the legislation. This additional background material may be found in published documents, such as a government white paper. If relevant information is provided by a minister or, indeed, any other member of either House in the course of a debate on a Bill, the courts must also be able to take this into account. The courts, similarly, must be able to have regard to information contained in explanatory notes prepared by the relevant government department and published with a Bill. The courts would be failing in the due discharge of the new role assigned to them by Parliament if they were to exclude from consideration relevant background information whose only source was a ministerial statement in Parliament or an explanatory note prepared by his department while the Bill was proceeding through Parliament.
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The Speaker accepts that there are circumstances in which reference can properly be made to proceedings in Parliament and where therefore this will not constitute impermissible ‘questioning’ of statements made in Parliament: The Courts may admit evidence of proceedings in Parliament to prove what was said or done in Parliament as a matter of historical fact where this is uncontentious: see Prebble v Television New Zealand Ltd [1995] 1 AC 321, at [337]. Parliamentary material may be considered in determining whether legislation is compatible with the European Convention on Human Rights: see Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816, at [65] (Lord Nicholls of Birkenhead). The Courts may have regard to a clear ministerial statement as an aid to the construction of ambiguous legislation: see Pepper v Hart [1993] AC 593, at [638]. The Courts may have regard to Parliamentary proceedings to ensure that the requirements of a statutory process have been complied with. For example, in this case, the Courts may admit such material to be satisfied that the steps specified in s 9 of the Planning Act have been complied with. The Courts may have regard to Parliamentary proceedings in the context of the scope and effect of Parliamentary privilege, on which it is important for Parliament and the Courts to agree if possible: see the decision of Stanley Burnton J (as he then was) in Office of Government Commerce v Information Commissioner [2010] QB 98, at [61]. An exception has also been identified for the use of ministerial statements in judicial review proceedings. The Speaker accepts that such an exception exists but contends that the scope and nature of this exception has not yet been the subject of detailed judicial analysis. It calls for careful consideration of the constitutional issues involved. We respectfully agree.
In the wake of Pepper v Hart, the UK courts have, generally speaking, developed the jurisprudence in a manner consistent with act utilitarianism. Exceptions have been developed to ensure that information is available for particular, unusual circumstances, when it is beneficial. This is a move away from the original rule as posited by Maxwell in the late nineteen hundreds, which was consistent with rule utilitarianism: there was a single rule that was regarded as beneficial despite any particular instances when the materials would prove to be useful and the rule would therefore be detrimental. Arguably, this is part of a larger trend in the United Kingdom. In the first half of the 20th century, literalism dominated under the belief that this was the best way to ensure that judges were abiding by the legislative will of Parliament. Along with the move towards acceptance of the various types of legislative history, there has been a move towards nuance, or to use Bennion’s term, ‘gloss’. 178
Conclusion
Despite simplistic pronouncements, it is inaccurate to say that the rule prohibiting reliance on legislative history in the courts of the United Kingdom was firmly in place and strictly upheld from the beginning of the 20th century until Pepper v Hart. The rules governing legislative history were explained in divergent ways in the two dominant treatises on statutory interpretation in England at the turn of the 20th century. The prohibition on commissioners’ reports was subject to a precedent-based exception that was regarded by many judges as doubtful, and unsurprisingly, this case created a certain amount of uncertainty about the law. What is surprising is that the matter was not fully resolved until the 1960s.
As typically happens with common law phenomena, the change occurred through evolution rather than revolution. After it became firmly established that commissioners’ reports were admissible, judges began to see the merit in draft Bills, and commentaries, and then reliance on Hansard became a genuine topic of debate. The prohibition of legislative history was narrowed over time through the accumulation of exceptions as judges became comfortable with incremental changes.
The justifications for the rules continue to have traction in a small number of jurisdictions, and the debate is far from over. The sharp distinction in the trend between the United States and the United Kingdom reveals that, for this particular matter, the iconic distinction between form and substance has been inverted. The United States is embracing formalism and the United Kingdom is accommodating substance. However, it would be risky to declare that the matter is settled for good in the United Kingdom. The forces that coalesced to bring about the demise of the rule in the United Kingdom and elsewhere are neither inevitable nor permanent. This could be a cyclical phenomenon, and the United Kingdom may very well be at the point of maximum excursion against the rule. It would take as few as two or three determined Supreme Court judges to move things in the opposite direction.
Footnotes
Conflict of interest
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.