The judicial aids to the construction of statutes, including the exclusionary rule to which I have just referred, were formulated as a matter of judicial policy in the light of experience and with a view to enabling the Courts to ascertain, as far as possible, in a useful, efficient and objective manner the true meaning of the statute in issue. They are not fundamental principles. They are a methodology of approach to the interpretation of statutes. They may be changed or adapted. In very recent times the classic exclusionary rule concerning parliamentary debates has not been applied in the traditional manner in a certain number of cases within this jurisdiction (and I will refer to these later) and the question as to the application of that rule has been once again raised an argument in this case. There is no rule of law which prohibits a review of a rule of construction. The question is whether it is now appropriate to relax or set aside that rule. It is not simply a question of whether the rule is set in stone or is too rigid or ought to be more flexible.
In some countries such as Canada and Australia changes have been brought about by legislation reflecting legislative policy with which we are not concerned with here. Particular reference was made to the position in the United Kingdom following the decision in Pepper -v- Hart [1]and the United States where use of parliamentary materials in the interpretation of statutory law has been the practice for many decades. While the experience of those jurisdictions, as found in the judgments of their Courts, are interesting and illustrative, I am doubtful as to their value in helping to resolve the issue in this jurisdiction. Although questions of principle may and do arise in the consideration of this issue, such as the role of the courts in interpreting statutes, once general questions of principle are taken into account the issue in any jurisdiction concerning the use of parliamentary debates is fundamentally a question of judicial policy adopted in the context of its own constitutional framework in such jurisdiction and whether, having regard to judicial practice and experience such use should be considered appropriate or useful in that system. A purely analytical approach to judicial pronouncements in the United States or in the United Kingdom (or elsewhere) would involve evaluating what is good judicial policy or practice in those jurisdictions, something which I do not consider to be the function of this Court. Nor would it be in a position carry out such an evaluation. What is clearly illustrated is that a rule permitting the use of parliamentary debates in the interpretation of statutes has not produced a so-called “golden rule” referred to by Bennion. On the contrary it is a judicial practice which is subject to continuing debate and questioning either judicially and certainly extra-judicially. It was only in the 1940’s that extensive use of parliamentary history in the United States emerged. It is a practice that has been regarded by some members of the judiciary there with, at least, some unease. In 1953 Justice Jackson observed in one opinion “I should concur in this result more readily if the Court could reach it by analysis of the statute than psychoanalysis of Congress ... That process seems to be not interpretation of the statute but the creation of a statute” ( US -v- Public Utilities Commission of California[2]. Writing extra-judicially Justice Scalia of the Supreme Court has observed that the United States has now developed a legal culture in which lawyers routinely make no distinction between words in the text of a statute and words in its parliamentary history. According to him the resort to parliamentary history has become so common that reality has overtaken the parody in the popular quip that “one should consult the text of a statute only when the legislative [parliamentary] history is ambiguous.” He also points out how as a result of this judicial practice in the United States, statements are specifically prepared in Congress, often at the behest of lobby groups, for the purpose of influencing statutory interpretation by the Courts. At pages 483 - 485 of his third edition Bennion argues that on a proper construction of the statute in issue in Pepper -v- Hart recourse to the parliamentary debates ought to have been excluded, a view expressly disagreed with by Lord Bingham in R -v- Secretary of State for the Environment etc [3]. That is not a debate, if debate it is, which I would wish to enter upon. Suffice it to say that as regards modifying rules of construction it is essentially for each jurisdiction to decide according to its own appreciation of considerations of judicial policy in the context of the factors which I have referred to above. Also the nature of rules of construction as ancillaries to the construction of statutes is such that once a rule is in place whether it is relevant or applicable in any given case in turn depends on the nature of the particular statute and the interpretative problem which it poses. Hence the use of any rule of construction as evidenced in judgments of the Courts is rarely other than an ad hoc illustration of its use rather than a decision in principle. For these reasons it does not seem to me that analysis of judgments of other jurisdictions concerning these matters would be of great value from the point of view of determining judicial policy in this country on that issue.[4]
[1] Pepper -v- Hart [1993] 1 AER 42
[2] US -v- Public Utilities Commission of California [1953] 345 US 295
[3] R -v- Secretary of State for the Environment etc [3][2001] 1 AER 195 at 211
[4] See: Crilly v. T. & J. Farrington Ltd. [2001] IESC 60; [2002] 1 ILRM 161 (11 July 2001) [Ireland]
URL: http://www.bailii.org/ie/cases/IESC/2001/60.html
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