Use of Hansard and other legislative history in statutory interpretation

Transcription

1 F A R Bennion Website: Doc. No Any footnotes are shown at the bottom of each page For full version of abbreviations click Abbreviations on FB s website Use of Hansard and other legislative history in statutory interpretation Introductory Note by Francis Bennion The following is a copy of an official Memorandum ( the Memorandum ) which I wrote in It relates to clause 8 of a Bill drafted by Professor Andrew Martin, who was later appointed one of the first members of the Law Commission set up by the Law Commissions Act This Act was drafted by the late Sir Noël Hutton, and I was its assistant draftsman. Martin was co-editor with Gerald Gardiner QC (later Lord Chancellor) of the influential book Law Reform NOW 1. This book, sponsored by the Society of Labour Lawyers, proposed the setting up of a body of Law Commissioners to carry out reforms. I was reminded of having written the Memorandum by a passage in Law, Law Reform and the Family by Stephen Cretney 2. This describes clause 8 as follows: Further evidence of the dominant role intended for the [Law] Commission was provided by a clause in Martin s draft which would have required 3 courts to have regard to memoranda to be published by the Lord Chancellor explaining the policy underlying each public general Act. This last proposal was too much for Gardiner, who noted that it would effectively give the Executive power to dictate to the courts the [legal] meaning of legislation. At this point a lengthy footnote is inserted by Cretney, part of which reads as follows: The Lord Chancellor s officials discussed the proposal with the First Parliamentary Counsel, Sir Noel [sic] Hutton. He considered that the provision was very interesting ; but repeated the objection (already made by Gardiner) that it seemed difficult to allow Parliament to pass an Act and then proceed to tell them what they have done ; and he also pointed out that the American practice (on which Martin had relied) had evolved over a long period of time: Hutton to Coldstream, 4 Nov Hutton got one of the particularly able people in his office, Francis Bennion to draft a paper, and the result (dated 17 Dec ) is both erudite and interesting. Coldstream eventually minuted Gardiner: At the official level it has been suggested that this question as a whole might be referred to the Law Commission for consideration. They would certainly have an opportunity of making a comparative study of the attitudes of Commonwealth and foreign courts to this problem. But in any event I would not advise you to introduce a Bill with a clause of this kind in it unless you had first given the Judges, particularly the Law Lords, a very full opportunity of considering the implications. This suggestion was adopted; and the Law Commissions eventually published a Report on the Interpretation of Statutes (Law Com. No. 21, Scot. Law Com. No. 11, 1969). But change of a radical and controversial nature was brought about by judicial rather than legislative means: Pepper (Inspector of Taxes) v. Hart [1993] AC 593, HL (critically analysed by F. 1 Gollancz, Clarendon Press, Oxford, A footnote here reads: The courts were also to be expressly permitted to have regard to Law Commission or Royal Commission reports. 4 This date differs slightly from that on the copy of the memorandum reproduced below and seems to be a mistake.

2 Bennion, Second Cumulative Supplement (1995) to Statutory Interpretation (2nd. edn. 1992) Section ). 6 The copy of the Memorandum reproduced below came into my possession in 2006 through the courtesy of a senior Government official. It was accompanied by a copy of a letter dated 9 February 1966 from Sir Noël Hutton to Sir George Coldstream, Permanent Secretary to the Lord Chancellor. This reads: Law Reform: Interpretation Many thanks for your letter of 8 th February enclosing the copy of Francis Bennion s Note and of your letter to Norman Marsh. I thought the Note was first rate when I first read it, and it seems even better on a second acquaintance. The draft also looks pretty sound subject perhaps to the question which I raised before whether it might not be preferable to say that the court may take notice. In response to an enquiry from me Professor Cretney said: N.K.H. I saw the files in the LCD office in Victoria. The reference was 3697A/3. At the time the Departmental Records Officer was Enid Smith, and she was very helpful. I do not know why the papers had not been transferred to the PRO, or indeed whether they have since been lodged there. If so it should be possible to locate them under The National Archives catalogue classification BC3. But I am not sure whether the papers dealing with the setting up of a body are perhaps filed under the parent s reference. Unless you are expert in dealing with the NA catalogue it might be sensible to start with the DCA Records Officer. Unpublished Memorandum dated 19 November 1964 by Francis Bennion, Deputy Parliamentary Counsel, to Sir Noël Hutton, First Parliamentary Counsel, Parliamentary Counsel Office, 36 Whitehall, London SW1. Sir Noël Hutton Law Reform (Miscellaneous Provisions) Bill You asked me to comment generally on clause 8 of the Bill, allowing the courts to look at legislative history as an aid to interpretation. In its latest form the clause runs as follows:- Interpretation of public general Acts. 8.- (1) As soon as possible after the publication of any public general Bill the Lord Chancellor shall lay before each House of Parliament a memorandum explaining the Bill and the purposes which it is intended to serve. (2) In interpreting and applying any public general Act a court shall have regard to any memorandum with respect thereto laid before Parliament under the last preceding subsection and may have regard to any Bill in Parliament for that Act and any explanatory memorandum associated with such Bill and the official reports of debates in Parliament on any such Bill and any report relevant to that Act of the Law Commission or of any Royal Commission or other body appointed by Her Majesty s Government to enquire into and report on any particular branches of the Law. The present law 5 See now Bennion on Statutory Interpretation (5 th edn, 2008) pp See also How they all got it wrong in Pepper v. Hart and other writings specified at 6 Loc. cit., p. 6, footnote 37. I wrote an article condemning the draft clauses annexed to Law Com No. 21: see Another reverse for the Law Commission s Interpretation Bill, New Law Journal, 13 August 1981, The draft clauses, which did not permit reference to Hansard, were never enacted.

3 In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon s Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief 7. This is a useful starting point, though it over-simplifies in assuming that every statute is passed to cure a mischief. One might put it that the court to do its job properly will often need to consider, in addition to the Act itself, the situation (both legal and factual) existing when the Act was passed; and what it was in that situation which needed to be dealt with by legislation. To consider these things it must be able to find out about them, and it can probably do so in any way it thinks fit. Thus it can look at a statement as to the previous law made by the Lord Chancellor or a law officer during debates on the Bill 8 and it can probably look at a statement made in Parliament as to the facts on which the Bill was based 9. Again it can look at findings of law or fact in the report of a committee available when the Bill was passed. 10 What the court cannot do is to refer to such sources in order to discover the way in which Parliament intended by the Act to deal with the legal and factual situation 11. This is I think clearly established, though there are many instances to the contrary, e.g. Cave J: The Act of 1875 was not intended to increase the stringency of the law. It was preceded by a Royal Commission which recommended a relaxation of the law 12 Cockburn C.J: Where the meaning of an Act is doubtful we are, I think, at liberty to recur to the circumstances under which it passed into law, going on to cite speeches showing the intention of Parliament 13. A remarkable recent instance was the statement by the Court of Criminal Appeal that although section 44 of the Criminal Justice Act 1948 imposed no limit on the power conferred by it to award costs, the power should be used only in exceptional cases, adding that a reference to Hansard... 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 14. It is more accurate perhaps to say that the court cannot be seen to refer to the sources of the Act for this purpose. With, a recent Act the legislative history may be common knowledge, and the judge will have it in mind all along. Or counsel may bring it to his attention obliquely by making it part of his argument. 15 Or the judge may use the speech of a minister as a convenient summary of the object of the Act 16, or a journal entry as an illustration 17. In any event it may be assumed, as an American commentator has remarked, that if a judge thinks it important to do so he will find some opportunity of looking up the 7 Lindley M.R., Re Mayfair Property Co. [1898].2 Ch. 28, R. v Bishop of Oxford 4 Q.B.D. 525, In R. v Board of Education [1909] 2 K.B. 1045, 1072, Lord Alverstone C.J. reserved his opinion on this, while appearing sympathetic. 10 Re Dean of York 114 E.R. 15; Eastman v Comptroller of Patents [1898] A.C. 573; Assam Rlys v C.I.R. [1935] A.C. 445, 457; Ladore v Bennett [1939] A.C. 468, 477; Pillai v Mudanayake [1953] A.C. 514, See cases cited in Halsbury s Laws Vol. 36, p. 410, note (a). 12 Connor v Kent [1891] 2 Q.B. 545, S.E. Rly v Rly. Cmrs. 5 Q.B.D. 217, Practice Note [1952] W.N See also In re Castioni [1891] 1 Q.B. 149, 153, 155; Fellows v Clay 114 E.R ; Salkeld v Johnson 135 E.R Martin v Hemming 156 E.R. 529; In re Castioni [1891] 1 Q.B. 149, As in Lumsden v C.I.R.. [1914] A.C. 877, As in Viscountess Rhondda s Claim [1922] 2 A.C. 339, 399.

4 legislative history, and unless his sympathies are strongly the other way he will in cases of ambiguity, endeavour to conform to it. Reasons for the present rule I have found no case which enters at any length into the reasons for the rule that Parliament s intention must be gathered solely from the Act itself. The following general reasons have been given by the courts or commentators:- 1. An Act is a written instrument, to be construed like any other. The rules restricting recourse to extrinsic evidence of the intention of a testator, covenantor etc. have therefore been applied to legislation To confine the meaning to that indicated by preparatory work would cramp the expanding interpretation of an Act to meet later developments The rule prevents uncertainty, since otherwise an Act could not be relied on without an exhaustive search of preparatory work which may not be easily available and may include mutually conflicting statements (in some continental countries official copies of statutes are published together with a dossier of legislative history materials). The following reasons have been given for excluding reference to proceedings in Parliament:- 1. The history of previous changes made or discussed [in Parliament] cannot be taken to have been known or to have been in view when the Royal assent was given 20. This hardly holds water now that the rules against reporting debates have been lifted. 2. A statute is made by the three constituent bodies of Parliament and what is said by a member of one cannot show the intention of the others - or even of that one, since the views may not be those of the majority 21. The courts have refused to recognise a resolution of one house only as having the force of law 22. It is not surprising therefore, says Lauterpacht, that isolated expressions of opinion during the debate are not admissible as an element of interpretation they would be quite untrustworthy in any case. In the case of an Act dealing with a controversial subject ambiguous phrases are often used designedly The rejection of Parliamentary history is an assertion of judicial freedom from Parliamentary control 24. The main reason given for not referring to the recommendations of a Royal Commission or similar body is that it does not follow that their recommendations were accepted 25. Indeed, if we were allowed to draw any inference from the comparison between the language of the report and that of the legislature, the more legal inference would be, that the marked distinction, observable between the two, could not have been the result of accident, but must have been advised and intentional 26. These reasons can be summed up by saying that the courts consider any guidance to Parliament s intention not contained in the Act itself to be untrustworthy and therefore of little value. It is clear that the language of a Minister of the Crown in proposing in 18 See Llewellyn Davies, 35 Columbia L.R See Lauterpacht, 48 Harv. L.R Lord Haldane in Viscountess Rhondda s Claim [1922] A.C. 339, 383, following a dictum of Willes J. in 1769 that changes made to a Bill in one House were not known to the other House or to the sovereign. 21 Maxwell, p Stockdale v Hansard 9 A. & E. 1; Bowles v Bank of England [1913] 1 Ch Parwell L.J. in R. v West Riding C.C. [1906] 2 K.B. 676, Lauterpacht, op.cit. 25 Assam Rlys v C. I. R. [1935] A.C. 445, Salkeld v Johnson 135 E.R

5 Parliament a measure which eventually becomes law is inadmissible and the Report of Commissioners is even more removed from value as evidence of intention 27. Foreign rules The United States courts have in theory the same rules about recourse to legislative history as ours, but there has in recent years been a widespread relaxation of the rules, and many law libraries now prepare legislative history dossiers of all important Acts for consultation by practitioners. One comment on this change is of interest for this country: It is obvious that the Court has grown in its understanding of the ways of Congress, and without an understanding of how a legislative body goes about making its decisions it is indeed difficult for a judge to determine what is the will of that legislative body 28. The main source to which the courts look is the reports of the committee in charge of the Bill, which normally has a voluminous treatment of the reasons and objects. A useful summary of the modern practice in the United States is the following: Of the various types of legislative materials, the legislative history of an act, that is amendments made or rejected in the course of its passage through the legislature, and formal committee reports, are freely used in interpretation, subject only to the vagaries of the plain meaning rule and to the requirements of relevancy. Debates on the floor of the legislature were formerly completely excluded, and such is a common statement of the present rule. This rule was first modified to permit the consideration of statements by the committee chairman or member in charge of the bill on the floor of the house. Many cases, particularly the more recent, have declared that it excludes the use of debates to explain the meaning of words, but allows their use to show the purpose of the act and the evils sought to be remedied. This exception would seem practically to engulf the original rule; and debates apparently are now employed, at least in the federal courts, in so far as they are of probative value. 29 On the continent legislative history is admissible, though Lauterpacht says: it is a mistake to overrate its importance... it is not a source of law; it serves to interpret the law 30. Canada follows the English rule, though a law professor there has recently argued that it is more a counsel of caution than a canon of construction and urged his courts to be bolder 31. Australia and New Zealand I believe are the same. Ghana as we know has a licence to use legislative history (but not debates in Parliament) conferred by its Interpretation Act. I have not found any other instances of a positive enactment to this effect. The proposed change If the courts are now told by Parliament that they can look at the legislative history of an Act what effect will this have? To begin with, will it alter the court s decision where the meaning of the Act is clear, but clearly not what Parliament intended? There have been many instances where the court has known perfectly well that its decision was contrary to the intention of the legislature, but has found the wording of the Act unambiguous and so given effect to it. A well-known example is Richards v. McBride 32. The commencement section of the Sunday Closing (Wales) Act 1881 provided for it to come into operation in each Welsh division or place on the day next appointed for the holding of the general annual licensing meeting for that division or place. Lopes J. said I cannot doubt that it was the intention of the legislature 27 Assam Rlys v C.I.R.. [1935] A.C. 445, Cited 35 Columbia L.R Harvard L.R.824 (anonymous note) Harvard L.R Canadian Bar Rev. 769, Q.B.D. 119.

6 that the Act should come into operation throughout Wales during the present year, i.e. at the next annual licensing meeting in each division or place. The literal meaning of next appointed led the court to hold however that where the next date had been appointed before the passing of the Act the Act would not come into force in that division or place until the following, year, i.e. on the date next to be appointed. The court s knowledge of Parliament s true intention was gathered from extraneous sources and so could not be acted on. Another instance is Ayrshire Employers Mutual Insurance v. C.I.R. 33 Here it was quite obvious that the only purpose of a Finance Act section was to reverse decisions holding that the surplus on transactions of a mutual insurance company with its members was not taxable. The section operated however merely by deeming the transactions to have been with nonmembers, and this was held by the House of Lords insufficient to raise a charge to tax, since it is not membership or non-membership which determines immunity from or liability to tax, it is the nature of the transactions. Lord MacMillan said: The Attorney-General with engaging candour submitted that he ought to succeed because, although the subsection might not in terms fit the case, it was nevertheless manifest that Parliament must have intended to cover it; if it did not cover it, then he could not figure any case which it could cover and Parliament must be presumed to have intended to effect something... The Legislature has plainly missed fire. Its failure is perhaps less regrettable than it might have been, for the subsection has not the meritorious object of preventing evasion of taxation, but the less laudable design of subjecting to tax as profit what the law has consistently and emphatically declared not to be profit. Then there is the casus omissus. The authorities on this are, as Craies puts it 34, numerous and unanimous. The language of an Act must not be extended to meet a case which is clearly unprovided for, however obvious it may be that Parliament intended to cover it. Thus, to take a recent example, the court declined to hold that a prohibition on offering flick-knives for sale in the Restriction of Offensive Weapons Act 1961 extended to their display in a shop window 35. Suppose in this case counsel for the prosecution had been able to produce a statement by the private member in charge of the Bill assuring the standing committee that the prohibition did cover exposure in a shop window. Under the new provision the court would be able to look at this. Would it be entitled, or indeed bound, then to act on it and convict the accused? In all such cases, where the meaning of the Act is clear, but it is also clear that Parliament is in the predicament that quod voluit, non dixit, it is ineffective merely to tell the court that it may look at the legislative history, for this will add nothing to the court s knowledge. The question is whether it is intended by this new provision to produce the opposite result in cases such as those just cited. If it is, the provision needs to be worded after this fashion: Where the court finds from the legislative history that the meaning of the words used in the Act is contrary to that intended by Parliament, it shall disregard the words used and give effect to Parliament s intention. Otherwise it needs to be made clear that the new provision applies only where the wording of the Act is ambiguous, a limitation which so far as I can discover applies in all countries where resort can be had to legislative history. Presumptions A new rule merely allowing the court to look at legislative history would avoid the problems discussed above if it were confined to cases of ambiguity. But even so limited the rule might give rise to difficulty where the present law raises a presumption in aid of resolving the ambiguity. There are of course many such presumptions, some of greater force than others. Examples are that an Act is presumed not to operate retrospectively except in matters of procedure, not to alter the jurisdiction of the courts, not to operate extra-territorially and not to T.C Page Fisher v. Bell [1961] 1 Q.B.394.

7 bind the Crown. Akin to these are rules requiring strict construction of Acts imposing penalties, or affecting private property, or levying taxation. There is also the presumption that Parliament has not erred in its framing of legislation. The difficulty would be that the new rule would give no indication to the court of how heavily knowledge gleaned from legislative history was to weigh against a presumption raised by the present law. Take for example R. v. Chapman 36, where the question was whether a man charged with unlawful carnal knowledge whose age was 23½ when the act was committed, could claim the benefit of a defence applying in the case of a man of twenty-three years or under. The question turned on whether a person was of twenty-three years only on his twenty-third birthday or from then until his twenty-fourth birthday. The court held that the Act was ambiguous, and decided the case on the principle that in such cases the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself. But suppose the new rule had been in operation and the Minister introducing the Bill had said this defence will be available to young men until their twenty-third birthday. Would the court then have been obliged to convict? Would it make any difference if the words had been uttered on the spur of the moment in answer to an interjection, perhaps qualified by I think or I would say, or if they had been those of a law officer saying It will be for the court to decide, but this is my opinion? Variations in Hansard A minor point, perhaps worth mentioning, is that members have a right to edit their speeches for publication in Hansard. A Minister s hasty reply in answer to an interjection might take one form as spoken, another when edited by his private secretary for the daily Hansard, and yet a third when appearing in the bound volume. Although opposing counsel are unlikely to get hold of conflicting versions, there will be a heavy responsibility on those concerned with making Hansard corrections. Clause 8(1) A memorandum of the kind proposed in the original draft was suggested by Prof. Harold Laski in an addendum to the Donoughmore Report 37, though he contemplated that it would consist of the usual explanatory memorandum on the Bill as introduced revised by the Department to take account of amendments to the Bill. The draft leaves the scope and detail of the memorandum at large, and this must be right. A full explanation of a long and complex Act would be of book-length, and in some ways would be more difficult and time-consuming to draft than the Act itself. Even a short Act can call for a good many words if it is to be properly explained 38. However the draft does not require the memorandum to go to these lengths and in practice it would no doubt be something like an edited version of the Minister s second reading speech. The width of the draft comfortably leaves open the question whether the memorandum for a consolidation Act would deal with the substance of the Act or merely explain the consolidation, no doubt with tables of comparison. Clause 8(2) The difficulties arising from the fact that the court is merely required or authorised to have regard to legislative history have been discussed above. Other points are as follows. The draft is confined to public general Acts, but it is not clear why this should be so. The case for having recourse to legislative history seems to apply equally to private Acts 39 though 36 [1931] 2 K.B Report of Committee on Ministers Powers 1932 (Cmd.4060), Annex V. 38 The Perpetuities and Accumulations Act 1961 consists of eight pages, but explaining it, admittedly with some criticism thrown in, occupies fifty pages of the current Law Quarterly Review. 39 See Herron v. Rathmiries [1892] A.C.498; Davis v. Taff Vale Rly [1895] A.C.542; Steele v Midland

8 possibly there is a desire not to disturb the rule that in this Court we do not regard what may be called private bargains made in committee rooms 40. To exclude private Bills might cast doubt on the limited right which the courts have exercised to look at legislative history. In R. v. Manchester Corporation 41, for example, the court based its decision on the fact that a clause had been inserted on the petition of a person not named in it, since the fact of the petition was on record. Statutory instruments may also have a public history - for example the explanatory note, and speeches in Parliament on an affirmative or negative resolution. To say that the court shall have regard to the explanatory memorandum seems to give it a status equal to the Act itself or any other law. This would create obvious difficulties where the memorandum contained a statement which the court found to be inconsistent with the clear meaning of the Act. If it is meant not to give the memorandum the force of law, but to compel the judge to read it every time a provision of the Act (however plain or familiar) comes before him it seems to go too far. The draft proceeds to list what are to be the legitimate sources of the legislative history, but the list is inevitably incomplete and in places too wide. An obvious omission, in the case of consolidation Acts, is a reference to materials relating to the Acts consolidated. Other materials that it might be proper for a court to look at are: a treaty or convention (where the Act enables it to be ratified - see the Performers Protection Act 1963 (c.53) where section 1 embodies the actual words of the convention), a white paper foreshadowing a Bill (which may not be an explanatory memorandum associated with it ), House journals and order papers (which include material, e.g. amendments not moved, which are not recorded in Hansard), reports of select committees, the joint committee on consolidation bills, etc. (the reports are not official reports of debates, and the committees are not appointed by H.M. Government ). The list goes too wide in the following respects. An explanatory memorandum associated with such Bill is not required to have an official origin and could therefore include one produced by a body such as the Association of Municipal Corporations (at least where that body was promoting the Bill) or even one produced by an academic or professional commentator, which is presumably not the intention of the draftsman. Any report relevant to that Act... is not limited to reports leading up to the enactment of the Bill, but would include reports in the nature of commentaries drawn up after its enactment. These would not be part of the legislative history and could be consulted, in the same way as textbooks and other commentaries, without aid from this clause. On the other hand it is presumably not intended to alter the rule preventing recourse to practice notes issued by the government department administering the Act 42. Clause 9 is expressed not to apply to Northern Ireland 43 but there should it seems be a common standard of interpretation of United Kingdom Acts wherever they extend. There is a question of how far, if at all, the clause should apply to Acts passed before its commencement. Where these laws come before the courts on the old basis there is an obvious danger of post-bill decisions being different, or of difficulty arising about how far previous decisions are still binding. Suggested draft The following is drafted on the assumption that the new rule is only to apply where there is an ambiguity in the Act as drawn, and is intended to avoid the other difficulties mentioned above. It does not attempt to exclude any particular materials, on the view that the court can safely be left to select only materials that in the particular case give trustworthy evidence of Parliament s intention. The concluding words of subsection (l) are designed to show that if Rly (1866) L.R. 1 Ch Lord Alverstone C.J. in R. v. Manchester Corpn. [1911] 1 K.B.560, See footnote 34 above. 42 L.C.C. v. Central Land Board [1958] 1 W.L.R their use might well result in the court being influenced by official opinion. 43 Clause 10(4).

9 the materials looked at resolve the doubt any presumption of law applicable in the case of such a doubt is displaced. Interpretation in the light of legislative history. (1) Where in applying any Act a court is in doubt as to the intention of Parliament as expressed in the Act, the court may have recourse to any materials originating before the passing of the Act which appear to it to throw light on that intention, including reports of proceedings in Parliament, documents presented to or laid before Parliament, and any other relevant materials; and if in the opinion of the court those materials resolve the doubt the court shall apply the Act accordingly. (2) This section shall not affect the construction of any Act passed before the commencement of this Act, or of any Act passed thereafter in so far as the Act re-enacts provisions originally enacted before that commencement. (3) For the purpose of construing any provision of an Act this section shall extend to every country or territory to which that provision extends FARB [F A R Bennion]