If the courts are to venture beyond the literal meaning of the words in an Act, and attempt to ascertain the intention of the legislature, questions arise as to what tools may be used to discover intention. The purpose of a statutory provision may be ascertained from its context; but how wide should that context be? Should the courts confine themselves to examining the Act as a whole, and to discerning the intention of the Oireachtas from, for example, the long title? Or should the courts move beyond the text, to examine other related statutes , or international conventions, or preliminary drafts of the Act as a Bill, or parliamentary debates or even pre-parliamentary discussion documents? External aids to interpretation could encompass, for example, pre-parliamentary departmental papers, or instructions to the draftsperson.
As one moves further from the text of the Act, the aids to interpretation become more controversial. Arguably, although the idea of a single "legislative intention" can be sustained on an examination of the text of an Act, an examination of the parliamentary debates may show widely varying ideas as to the purpose of the statute. The intention of the legislature may not be uniform; and in relation to the particular circumstances of the case, there may not have been any clearly thought out legislative intention. Lord Wilberforce in Salomon v Salomon remarked:
" `Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it."
If great significance is attached to extrinsic aids, there is a danger that this "speculative" version of the legislation may be enforced. This leads to diminished legal certainty.
Against these arguments, must be noted the hard cases where recourse to an external source - the text of an early draft of a Bill, for example, from which words were later omitted, or a ministerial speech in the Dáil - would clarify with ease a point of interpretation and save a court from enforcing an absurdity or an unjust anomaly. Recourse to an external document, which is readily available to the court, might satisfactorily resolve an ambiguity which could otherwise only be addressed by inspired guesswork or dogmatic insistence on the primacy of text. Where an external aid would be of great assistance to a court, it seems perverse to deny its use. This dilemma is expressed very clearly in Lord Bridge's comments in Pepper v Hart:
"I should find it very difficult, in conscience, to reach a conclusion adverse to the appellants, on the basis of a technical rule of construction, requiring me to ignore the very material which in this case indicates unequivocally which of the two possible interpretations of section 63 (2) of the Act of 1976 was intended by Parliament."
Lord Browne-Wilkinson in the same case asked "if the words are capable of bearing more than one meaning, why should not parliament's true intention be enforced rather than thwarted?" The remarks of Lord Denning in Davis v Johnson , admitting that he had recourse to Hansard despite the exclusionary rule, are also interesting:
"In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings ... And it is obvious that there is nothing to prevent a judge from looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position."
It may be more important to place limits on the consideration of external aids, for example by specifying the use to which they may be put or by confining their use to those cases where there is ambiguity or absurdity on the text of the statute , than to exclude their use altogether.
A further, practical argument against the use of extrinsic aids is that they are not readily available, either to lawyers or to the general public. This argument obviously has more force in relation to some extrinsic aids than to others. In Fothergill v Monarch Airlines , Lord Wilberforce laid down the condition that thetravaux preparatoires of a treaty could only be considered where the material involved was "public and accessible". It should be noted that technological developments have contributed greatly to the wider availability of much of the material used as extrinsic aids in the interpretation of legislation. The availability on the internet, for example, of parliamentary debates from many jurisdictions, as well as the texts and travaux of many treaties, has greatly enhanced the accessibility of this material. The argument that the use of extrinsic aids results in an increased workload for lawyers and the courts, and therefore in increased costs and delays, may have more force. However, where the use of extrinsic aids is confined to a narrow category of cases, the problem is not so serious.
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