The primary objection to reference by the courts to Oireachtas debates lies in the reluctance of the courts to look behind the final text of legislation, and the fear that this might impinge on the legislative power. The English doctrine of parliamentary sovereignty has of course given particular weight to these objections. There is therefore a less pressing reason, in this jurisdiction, to exclude scrutiny of parliamentary materials where this would be particularly helpful to the courts.
There are also however, practical arguments against the use of Oireachtas debates as an aid to construction, such as the effect which this might have on legal certainty, the difficulty which lawyers and the public may have in obtaining access to the relevant documents, and the increasing pressure of work that a widespread practice of consulting the debates would place on the judiciary and on legal practitioners.
There is also an argument as to the usefulness of parliamentary debates in most cases. It is argued that a single "will of parliament" is rarely a reality in the enaction of statutes, and that consulting the debates will not yield a single, parliamentary intention. This is not so in every case, however, as can be seen from the Irish caselaw. A ministerial statement which clarified a doubtful point in the statute to the satisfaction of the Oireachtas (to the extent, for example, that amendments are withdrawn) may be useful in ascertaining the meaning of a provision.In favour of the consideration of parliamentary debates, it is arguable that, if the courts are to have regard (in any circumstances) to the purpose of legislation, they must have adequate means at their disposal to establish that purpose. Valuable statements as to the purpose of a Bill, which are authoritative and undisputed by other members of the Oireachtas, may be crucial to a court's understanding of the purpose of an Act.[1]
The Supreme Court of India has summed up the Indian approach as follows:
The relevance of the parliamentary debate or the speech of the Minister has been highlighted by this Court in many cases. It is a settled position in law that there can be only limited use of the parliamentary debate. The Courts should not normally critically analyse the proceedings of Parliament.
This flows from a very fundamental aspect i.e. mutual respect of the Parliament and the Judiciary for each other. Each of these great institutions in a democracy operates in different fields. It is not expected that one wing of democracy would criticize the manner of functioning of another wing. That would be against the basic desirability of mutual respect. Any opinion or comment or criticism about the manner of functioning of one by the other would be not only undesirable but imperatively avoidable. The citizens of this country expect a great deal from the Parliament and the Judiciary. It is but natural that the people of this country would be disappointed and dis-heartened and their hopes will be shattered if instead of showing respect for each other, there is mudslinging, unwanted criticism or impermissible criticism about the manner of functioning or the rationale of a decision or a view taken. In this context, it would be relevant to take note of what this Court said in Builders Association of India v. Union of India and Ors. (1995 Supp (1) SCC 41), and K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. (1985 (1) SCC 523).
In State of Mysore v. R.V. Bidap (1974 (3) SCC 337), it was observed as follows:
"5. Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates and press discussions as throwing light upon the meaning of statutory provisions. Willes, J. in Miller v. Tayler, [1769] 4 Burri, 2303, 2332., stated that the sense and meaning of an Act of Parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the House where it took its rise. That history is not known to the other House or to the Sovereign. In Assam Railways and Trading Company Ltd. v. I.R.C., [1935] A.C. 445 at p. 458, Lord Writ in the Privy Council said :
"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." [ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008)]
[1] Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)
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