Chapter-4 Case laws on Legislative History of a provision Part-4-15

Chapter-4

Case laws on Legislative History of a provision

Part-4-15

For some time, the Irish courts were reluctant to consider the history of an Act, as can be seen from the case of Minister for Industry and Commerce v Hales . In that case, which concerned the interpretation of the Holidays (Employees) Act, 1961 , extensive arguments were made by counsel relating to the legislative history of the Act, and the intentions of the Minister with regard to particular provisions. McLoughlin J held that the legislative history of the Act should not be taken into account, since "the conclusion that such evidence is inadmissible is confirmed by the most compelling authorities." He held that since the statute was to be construed literally, except in the case of absurdity or incongruity,

"it would be departing very far from this canon of interpretation if we were to admit evidence of contemporaneous circumstances which would result in giving an interpretation to a section of the statute and the regulations made under it, which would be repugnant to the intentions of the legislature as indicated by the Act in question, construed as a whole."

HENCHY J also held that he was unable to take into account the fact that the subsection to be construed had been inserted as an amendment when the Bill was passing through the Oireachtas, although he acknowledged that this provided an explanation for the anomalies contained in the Act.

However, it would seem that this position has now been modified to allow for consideration of the legislative history of an Act in some circumstances. In Rowe v Law, O'HIGGINS CJ, in a partially dissenting judgment, considered the legislative history of the Succession Act, 1965 . However, he relied primarily on the ordinary meaning of the Act, using the legislative history to confirm its meaning. In interpreting section 90 of the Act, which related to the use of extrinsic evidence to ascertain the intention of a testator, he stated:
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"In arriving at the view that the effect of section 90 is to get rid of the common-law rule which rendered inadmissible extrinsic evidence for the purpose of ascertaining the actual intention of the testator as well as for the purpose of explaining contradictions in the will itself, I am satisfied that the ordinary meaning of the Act leads to this result. I am, however, fortified by the knowledge that the legislative history of the measure, particularly the introduction of the phrase `to show the intention of the testator' before the Bill was finally enacted leads inevitably to the same conclusion."

In DPP v McDonagh , the Supreme Court held that it was permissible for a court to consider the legislative history of a statute, as an aid to its construction. COSTELLO P, in a judgment with which the other members of the court concurred, took a very wide view both of the materials which could be used as an aid to construction, and of the circumstances in which they could be called into aid. He stated:

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"It has long been established that a court may, as an aid to the construction of a statute or one of its provisions, consider its legislative history, a term which includes the legislative antecedents of the provisions under construction as well as pre-parliamentary material and parliamentary material relating to it.[1]"

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In DPP v Brennan , McCracken J followed the judgment in McDonagh and held that, in interpreting section 19 (1) of the Criminal Justice (Public Order) Act, 1994, he was entitled to examine the relevant Bill, as initiated, and to compare its text with that of the final Act. The defendant was accused of assaulting a police officer. He had been charged, not with an offence under section 19, which would have entitled him to elect for a trial on indictment, but with common assault, a summary offence. After the initiation of the Bill, a passage had been added to the section to the effect that an accused could be tried summarily under section 19 only if he or she "elected for summary disposal of the offence". However, in this case, the accused had not been charged under section 19 in the first place. It was held that the Court was entitled to examine the reasons for the inclusion of these words, and to read the relevant Dáil debates for this purpose. The court found, however, that the Dáil debates did not disclose any consideration of the situation which had arisen in the case, and therefore could not be used to modify the meaning of the Act.

The caselaw arising out of An Blascaod Mór National Historic Park Act, 1989, has raised questions regarding the use of extrinsic materials in statutory interpretation, and suggests a more cautious and restrictive approach than that in McDonagh . In a High Court hearing in the case in November 1992, MURPHY J favoured a literal approach to interpretation. On a motion for discovery, for documents in the possession of the defendant relating to the preparation and drafting of the Act, and to the manner in which the Minister had come to decisions in regard to its contents, MURPHY J held that such documents would not be relevant to the case, since the decision of the court regarding the constitutionality of the Act must be made with reference only to the terms of the Act. Counsel on behalf of the Minister contended that the constitutionality of an Act could only be challenged on the basis of its contents, and not on the motives of those who promoted, drafted or enacted it. Murphy J, citing with approval the dicta of LORD WILBERFORCE in Pictin v British Rys. Board , held that both as a matter of principle and as a matter of practicality, documents illustrating the purpose behind an Act could not be used in its interpretation. He stated:

"It would seem to me to be absurd and offensive to members of the Oireachtas to assume that, whatever purpose or motive the promoters of a Bill might have, such motive or purpose would be the effective cause of the enactment of the legislation. To know how or why legislation was enacted would require a far-reaching examination and analysis of members of the Oireachtas who supported or opposed the legislation or indeed who absented themselves during its passage ... In legal terms an analysis of the motivation for legislation would be meaningless in practice, and in my view wholly unjustified by the doctrine of the separation of powers. The validity of legislation must be tested by reference to the document ultimately enacted by the Oireachtas and not on the basis of the motive, intention or purpose of the Minister by whom the legislation is introduced or those of any member of the Oireachtas who supports or opposes it."

At a further High Court hearing in July 1997, the plaintiffs sought to adduce the text of the Bill as it had been introduced in the Oireachtas, in order to assist in the interpretation of the term "lineal descendant" in the final text of the Act. Budd J expressly departed from the approach of Murphy J, and distinguished the decision in Howard v Commissioners for Public Works . Stressing the importance of "informed interpretation" in cases where there were constitutional considerations, Budd J noted that the term to be interpreted was ambiguous, and held that in the light of this the court was "entitled to investigate and look at what is the policy of this Act." Despite the stringency of the rule in Howard , he held, there must be room for relaxation of this rule in cases where there was a constitutional challenge. He went on to say that: "the Court is entitled to look at what was the mischief sought to be addressed by the passing of An Blascaod Mór National Historic Park Act, 1989 ." BUDDS J's ruling was confined to narrow facts, however. It was stressed that the document sought to be adduced in this instance was the text of a Bill, and this was distinguished from documents such as parliamentary debates, or other material which would enable the court to go "on an excursion into the motives or the purposes of individual members of the legislature.[2]"

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[1] He considered that in interpreting an Irish statute the Court could also have recourse to the preparatory materials of any United Kingdom statute on which the Irish Act was based. In the case, the Court was asked to consider section 2 of the Criminal Law (Rape) (Amendment) Act, 1981 . That provision was an almost exact replication of section 1 of the United Kingdom Sexual Offences (Amendment) Act 1976 . Costello P considered the circumstances in which the English Act had been enacted, following a controversial judgment in the House of Lords and the subsequent publication of the report and recommendations for legislative amendment of an advisory committee. He stated that it would be wrong of the Court to ignore the legislative history of the section, given the light which it shed on the section's proper construction. COSTELLO P did not confine consideration of the legislative history of a provision to circumstances where the provision was ambiguous. In the case before him, the section to be construed was, on its face, clear. Costello P rejected any "rigid exclusionary rule" which would confine consideration of preparatory materials to cases of ambiguity, relying on Bourke v Attorney General , in which the Supreme Court used the travaux preparatoires of the European Convention on Extradition in the construction of implementing legislation.

[2] In the hearing of the merits of the case, Budd J considered the text of the Bill as initiated and compared it with the text of the Act. However, he stated that he was not "prepared to speculate as to why words were either initially included or subsequently deleted."