Exclusionary Rule.II...Contd..

For some years before 1993 a self-imposed judicial rule precluded use of parliamentary proceedings as an external aid. This exclusionary rule was relaxed by this House in Pepper v Hart, so as to permit use of parliamentary materials as an aid to construction where certain conditions are satisfied. One of these conditions is that the legislation must be ambiguous or obscure, or lead to an absurdity[1].

The purpose for which a statutory power is conferred is just as much a question of interpretation of the statutory provision as is the meaning of a particular word or phrase. It cannot be right for the courts to look at parliamentary proceedings, if they assist, on the interpretation of a particular word or phrase, but to decline to look at parliamentary proceedings, however much assistance they may give, when deciding, as a matter of interpretation, what was the purpose for which a power was conferred. The point is underlined by noting that, if drawn, this distinction has the consequence that, in the latter type of case, the courts will look at other forms of extraneous material if they assist, such as statements in Government white papers, but not at what was said by Government ministers in Parliament. This would not be a rational distinction. Experience has shown that the occasions on which reference to parliamentary proceedings is of assistance are rare. To be of assistance as an external aid, the parliamentary statement relied upon must be clear and unequivocal. Otherwise it is of no real use. Parliamentary statements seldom satisfy this test on the points of interpretation which come before the courts. Increasing awareness of the lack of help provided by parliamentary material will, it is to be hoped, result in counsel being more realistic and more sparing in their references to such material[2].

As Lord Cooke points out in his speech, this does not mean that the courts will shut out, and not even look at, parliamentary material which one party reasonably contends supports his interpretation of ambiguous legislation. Rather, the courts will consider the material to see whether counsel's contention is well-founded. If the parliamentary statements relied upon are not clear, they are of little or no value and cannot qualify as an external aid in the particular case. They will fail to satisfy the third of Lord Browne-Wilkinson's conditions[3].

If, however, the statements are clear, and were made by a minister or other promoter of the Bill, they qualify as an external aid. In such a case the statements are a factor the court will take into account in construing legislation which is ambiguous or obscure or productive of absurdity. They are then as much part of the background to the legislation as, say, Government white papers. They are part of the legislative background, but they are no more than this. This cannot be emphasised this too strongly. Government statements, however they are made and however explicit they may be, cannot control the meaning of an Act of Parliament. As with other extraneous material, it is for the court, when determining what was the intention of Parliament in using the words in question, to decide how much importance, or weight, if any, should be attached to a Government statement. The weight will depend on all the circumstances. For instance, the statement might conflict with the principle of interpretation that penal legislation is to be construed strictly[4].

Reference to Hansard does not often help the courts with issues of statutory interpretation, but experience has shown that it does so occasionally. In this instance it is as helpful as the consultation paper of May 1998, summarised by my noble and learned friend Lord Bingham of Cornhill, in relation to the Order of 1999. Not being persuaded that there is any good reason why the courts should deny themselves the advantage of such sources, I would adopt the opening passage of the speech of Lord Griffiths in Pepper v. Hart [5]:

"My Lords, I have long thought that the time had come to change the self-imposed judicial rule that forbade any reference to the legislative history of an enactment as an aid to its interpretation. The ever increasing volume of legislation must inevitably result in ambiguities of statutory language which are not perceived at the time the legislation is enacted. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament?[6]"

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[1] see Lord Browne-Wilkinson [1993] AC, 593 at 640.

[2] LORD NICHOLLS OF BIRKENHEAD: Secretary of State for the Environment, Transport and the Regions and Another, Ex Parte Spath Holme Limited, R v. [2000] UKHL 61; [2001] 1 All ER 195; [2001] 2 WLR 15

[3] see Pepper v Hart [1993] AC 593, 640.

[4] LORD NICHOLLS OF BIRKENHEAD: Secretary of State for the Environment, Transport and the Regions and Another, Ex Parte Spath Holme Limited, R v. [2000] UKHL 61; [2001] 1 All ER 195; [2001] 2 WLR 15

[5] Pepper v. Hart [1993] A.C. 593, 617:

[6] The above was stated by: LORD COOKE OF THORNDONin Secretary of State for the Environment, Transport and the Regions and Another, Ex Parte Spath Holme Limited, R v. [2000] UKHL 61; [2001] 1 All ER 195; [2001] 2 WLR 15