Scope of Legislative History and Source

Scope of Legislative History and Source:International Practices

It should be noted, in this connection, that a House of Commons rule prohibits reference in debate to matters that are sub judice[1].

It is not necessary to examine in any detail the passage of the Bill through Parliament[2].

The Supreme Court of Canada had observed that no weight should be given to the commentaries of the Minister once the Act has been passed[3].

The Minster’s [legislature’s] Statement made after the passing of a statute cannot become the parliamentary history. The Supreme Court of Canada had taken this view as well “However, the commentaries are not an absolute authority. They are not binding on the courts, and their weight can vary, inter alia in light of other factors that may assist in interpreting the Civil Code’s provisions.[4]”

It has been laid down that, "The intention of Parliament is not to be judged by what is in its mind but by its expression of that mind in the statute itself, "-per LORD THANKERTON in Wicks v. Director of Public Prosecutions [7]. It is very rarely that the speech of a Minister introducing a Bill would be of assistance in the construction of the law that is ultimately enacted by Parliament. It is unnecessary to consider in what circumstances, if any, recourse to the speech of the Minister would be justified and whether such circumstances exist in this case. We have in fact perused the speech of the Minister and find nothing in it that will incline us to give a retrospective effect to the amendment.[8]

The scope of the history and allied documents and their relevance to ascertain that is to be ascertained has been stated lucidly in the following terms.

‘I would wish at this stage to consider the question whether it is necessary and appropriate to summon the aid of the background history of this disqualifying provision for the purpose of the interpretation of the section. In the interpretation of statutes there has been a considerable difference of opinion, firstly, on the correctness of having recourse to the history of a statute and, secondly, as to the occasion when as well as the extent to which such recourse, if any, should be had. It is a generally accepted principle that a court must in the first instance endeavour to gather the meaning of a statute by what it says and it is only if difficulties are encountered in reasonably interpreting it according to the ordinary rules of construction will it be permissible to refer to the state of the law at the time such statute was passed. Even so, the aid that should be obtained from such reference is very limited. Where the words of a statute are plain, however, it would not be permissible for a court to be guided by its history or by grounds of public policy and such other matters. Even where the meaning is obscure, it is very doubtful whether the parliamentary history of the statute can legitimately be used to assist its construction. I should wish to cite two passages here from Craies on Statute Law, 6th Edition, which, though not conclusive, throw some light on this matter. At page 127, on the subject of " History as an aid to interpretation ", he says :-" It was said by Alderson B. in Gorham v. Bishop of Exeter, that ' we do not construe Acts of Parliament by reference to history', and Farwell L.J. said in a later case, ' The mischief sought to be cured by an Act of Parliament must be sought in the Act itself. Although it may perhaps be legitimate to call history in aid to show what facts existed to bring about a statute, the inferences to be drawn therefrom are exceedingly slight'." Again at page 128, in regard to the use of Debates in Parliament, the following passage occurs :-'' It is not permissible in discussing the meaning of an obscure enactment, to refer to ' the parliamentary history ' of a statute, in the sense of the debates which took place in Parliament when the statute was under consideration-As was said by Willes J. in Millar v. Taylor : ' 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' ."

While it is difficult to lay down a hard and fast rule in regard to this matter as conflicting opinions have been expressed by courts in different parts of the world, it seems to me that, if a reasonable construction "can be given, to the plain words of a statute, recourse to the previous history of the law would be unnecessary. It is on this basis that I have considered the question before us as it appears to me that a meaningful construction can be given to the relevant words without reference to the previous history of the law. Furthermore, the question that we are called upon to decide is, in my view, not one which can be resolved by a reference to the previous history of the legislature. [9]’

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[1] 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 (7th December, 2000)
URL: http://www.bailii.org/uk/cases/UKHL/2000/61.html
Cite as: [2000] EGCS 152, [2001] 2 WLR 15, (2001) 33 HLR 31, [2001] 1 EGLR 129, [2000] UKHL 61, [2000] EG 152, [2000] NPC 139, [2001] 2 AC 349, [2001] 1 All ER 195

[2] Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005)
URL: http://www.bailii.org/uk/cases/UKHL/2005/56.html
Cite as: [2005] 4 All ER 1253, [2006] 1 AC 262, [2005] UKHL 56, [2005] 3 WLR 733

[3] Doré v. Verdun (City), [1997] 2 S.C.R. 862

[4] Doré v. Verdun (City), [1997] 2 S.C.R. 862

[7] Wicks v. Director of Public Prosecutions (1947 A.C. 367)

[8] Udalagama, .C V J v. Walpita, S.W., J. - NLR - 67 of 78 [1975] LKSC 8; (1975) 78 NLR 67 (19 August 1975)

[9] Ellawela v. Wijesundera - NLR - 265 of 74 [1971] LKSC 10; (1971) 74 NLR 265 (16 June 1971) G. P. A. SILVA, S.P.J