Pepper v Hart - Statutory Interpretation

On the whole, the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless. - Justin Santiago

The ruling in Pepper v Hart allowed references to be made to Hansard in limited circumstances as an aid to statutory interpretation in cases where the legislation was ambiguous leading to absurdity. This was an extension of the purposive approach to statutory interpretation which sought to look at Parliament's intention in drafting the statute and to give meaning to its intentions.

Lord Browne Wilkinson's triple locks for the admissibility of parliamentary material - references can only be made to statements made by a Minister and that statement must be clear are slowly being unpicked ... and that Hansard has become, or is becoming, an open book for guidance on the meaning and purpose of legislative provisions' which went beyond the original intention of Pepper v Hart.

Courts turned to Hansard although they held the relevant provision to be clear and unambiguous; 'de bene esse', as it was sometimes said. The second requirement that the material relied upon consists of one or more statements by a minister was not construed restrictively either. In R v Secretary of State for Education and Employment ex p. Begbie , decided six months after Pepper,the House of Lords had recourse to a statement by a single MP promoting a change in a Bill. All this was done in the name of usefulness of the recourse to parliamentary materials. materials. 'Happily', Lord Bridge stated 'our new freedom to refer to Hansard solves the mystery'.

The third requirement of a clear statement by a minister used to be the most difficult hurdle to overcome and the the courts soon discovered that the statements referred to often were ambiguous and did not provide a clear answer and therefor there was no distinguishing as to which statements could be referred to. This later led to an aditional requirement by Lord Brown-Wilkinson in Melluish (Inspector of Taxes) v BMI, three years after Pepper, who confined them to statements directed to the very point in question in the litigation thereby adding a fourth requirement.

There were practical problems as well. Lord Mackay’s dissenting judgement in Pepper v Hart citing additional costs and delays in making references to Hansard seemed to have been prophetic even though there has been development of Hansard as an online resource since 1993.

It was, however, the argument from the separation of powers angle which almost all the commentators advanced as the most serious concern. 'Again and again in their Lordships' speeches', Sir John Baker, the Cambridge legal historian, pointed out, 'the intention of the minister is equated with the intention of Parliament ...: the minister's words are to be read as a source of law, attached as it were to the Act'. 'This government-centred approach' he thought to be 'rather chilling' since the Law Lords were effectively undoing 'many centuries of constitutional struggle to eliminate the notion that the policy of the government should have the force of law; now, it seems, something very like it is slipping through the back door'. This was all the more deplorable since, in Professor Baker's view, 'so drastic and potentially troublesome a change' had been introduced without the legal objections to it being fully and explicitly canvassed in the House of Lords.

Pepper v Hart went against Article 9 of the Bill of Rights 1689 which provided against discussing proceedings in Parliament outside of Parliament which was regarded as “a cornerstone of parliamentary democracy”. This was to prevent the courts from using statements made in Parliament concerning the purpose of Bills as a guide to the interpretation of ambiguous statutory provisions.Lords Bingham, Hope and Hutton in R v Secretary of Sate, ex parte Spath Holme felt that Pepper v Hart was never designed to allow references to Hansard in order to ascertain what the Executive had in mind as their policy.

The decision in Pepper v Hart usurped the power of Parliament and the courts. Lord Hope put forward 'fundamental considerations of constitutional principle', namely that the 'law-making function belongs to Parliament, not to the executive’ and there was a real danger here of the courts becoming too close to the executive's intentions'. The courts' willingness 'to treat the statement of one member ... as decisive evidence of the intention of Parliament' was characterized by one commentator as 'a fundamental change' or 'major power shift in the British constitution' which had been more or less 'unwittingly set in motion' by the House of Lords.

Lord Steyn called for a retreat from Pepper v Hart in the case of McDonnel concerning the circumstances in which reference may be made to Hansard as an aid to statutory construction and for a reinterpretation of the decision in line with a theory that a Minister speaking in Parliament who gives an explanation of the meaning or effect of a clause in a Bill should be taken to create a binding legitimate expectation that the executive will apply the provision, once enacted, in that sense.

In McDonnell Lord Steyn rejected the useof Hansard for another reason. He repeated his estoppel argument and summarized the debate as follows:

It is permissible to use Hansard to identify the mischief at which a statute is aimed. It is, therefore, unobjectionable to use ministerial and other promoters' statements to identify the objective background to the legislation. To the extent that Pepper v Hart permits such use of Hansard the point is uncontroversial. A difficulty has, however, arisen about the true ratio of Pepper v Hart. It is certainly at least authority for the proposition that a categorical assurance given by the government in debates as to the meaning of the legislation may preclude the government vis-à-vis an individual from contending to the contrary. This may be seen as an estoppel or simply a principle of fairness. This view of Pepper v Hart restricts its ratio to the material facts of that case. There is, however, a possible broader interpretation of Pepper v Hart, viz that it may be permissible to treat the intentions of the government revealed in debates as reflecting the will of Parliament. This interpretation gives rise to serious conceptual and constitutional difficulties. In my view the narrower interpretation of Pepper v Hart ought to be preferred.

In 2003, the House of Lords, in the judgment on Wilson and others v Secretary of State for Trade and Industry, restated the scope of Pepper v Hart, accepting that its purpose was to require the executive to honour any legitimate expectations created, but stated:
The court is called upon to evaluate the proportionality of the legislation, not the
minister’s exploration of the policy options or of his explanations to Parliament. The
latter would contravene article 9 of the Bill of Rights.

While allowing references to Hansard has an additional aid to interpretation is welcome, references to Hansard can give rise to further ambiguity i.e. legislation being found to be incorrect, the appropriate weight to attach to the references and how relevant are the references to the point in question. There is also a danger of encroachment of the doctrine of the separation of powers and parliamentary priviledge. As such there are strict guidelines to prevent its overuse.