Exclusionary Principles...Concluding Part

In support of its submissions, the Appellants relied inter alia on the judgments of Costello, J. in Wavin Pipes Ltd -v- Hepworth Ireland Co. Ltd the High Court, [unreported, 8th May, 1981] and D.P.P. -v- McDonagh[1]which was a judgment of this Court. In the former case, Costello J. relied in large measure on the decision of this Court in Bourke -v- Attorney General and Wymes [2] for his view that the classic common law rule, according to which reliance on parliamentary material was excluded for the purposes of interpreting statutory enactments, should no longer apply. However, the Bourke case was concerned with an entirely different issue, namely the interpretation of a particular section of the Extradition Act, 1965 which the Supreme Court considered had been derived from Article 3 of the European Convention on Extradition (Paris, December 1957). For a very long time principles of common law concerning the interpretation of statutes which give effect to international treaties permit the Courts to interpret such a statute in the light of the meaning of relevant provisions of the treaty concerned. No doubt this is in part because the intention of the national legislature is clear - to give effect to provisions of the treaty in domestic law - and the objective consequence of that intent can be clarified or ascertained, where necessary, by reference to the meaning of the relevant provisions of the treaty, itself a legal instrument. There is also the consideration that contracting parties to international agreements should seek, as far as possible, to give uniform effect to its provision in domestic law. Furthermore, with this latter objective in mind, international treaties are interpreted in accordance with the principles of international law according to which the travaux prepatoires may be consulted for the purposes of their interpretation (unless such an approach is excluded, expressly, or by implication by the terms of the treaty itself or if there are no travaux preparatoires available). This common law approach to the interpretation of statutes giving effect to treaties has existed side by side with the general rule which excludes recourse to parliamentary debates and which Costello, J. then acknowledged has been extant since 1769 (citing Miller -v- Taylor [3]). This rule, Costello, J. acknowledged, “ has been applied ever since both in England and in this country ”. The decision in Bourke -v- Attorney General does not purport to qualify the common law exclusionary rule as to parliamentary history of statutes.

Perhaps at this point I should expressly refer to a distinction between ‘ legislative history ’ and ‘ parliamentary history’ of a statute - at least for the purposes of this judgment. In some writings and judgments the former term is used so as to include the latter but in classic common law tradition that is not the case. As the seventh edition of Craies observes at page 126 “ The cause and necessity of the Act may be discovered, first, by considering the state of the law at the time when the Act was passed. In innumerable cases the Courts, with a view to construing an Act, have considered the existing law and reviewed the history of legislation upon the subject ”. Craies also observed that it was hardly necessary to cite authorities for this proposition. This is an approach which permits an Act to be interpreted in the light of its legal historical context and with regard to the provisions of other Acts in pari materia . This long established approach of looking at legislative history is entirely distinct from that of parliamentary history where the latter refers to parliamentary debates and what occurred in the passage of a Bill through parliamentary procedures prior to its enactment.

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[1] D.P.P. -v- McDonagh [ 1996] 2 I.L.R.M. 468

[2] Bourke -v- Attorney General and Wymes [1972] I.R. 36

[3] Miller -v- Taylor 4 Burr 2303