§ 5.51 p.m.
§ Lord Irvine of Lairg rose to call attention to the circumstances under which parliamentary debates during the passage of a Bill or statutory instrument might be taken into consideration by the courts in their interpretation of the resulting statute; and to move for Papers.
§ The noble Lord said: My Lords, I beg leave to move the Motion standing in my name on the Order Paper. I am particularly pleased to see that among the noble and learned Lords who are to take part in this short debate the noble Lord, Lord Goff of Chieveley, is making his maiden speech. If this Motion achieves no more, it will have given the noble and learned Lord an opportunity to make what will inevitably be a notable contribution in this House.
§ Perhaps I may illustrate the subject of this short debate by referring to two recent decisions of your Lordships' House in its judicial capacity. In both, I appeared as counsel. The first was Hadmor v Hamilton in 1982. It was an industrial relations case. My client succeeded, three-nothing, in the Court of Appeal but lost five-nothing in your Lordships' House.
The second case was Mandla v. Dowell Lee the very next year, 1983. The question was whether a Sikh boy was discriminated against on ethnic grounds when his headmaster ruled that he could not wear his turban at school. I represented the Sikh boy. He lost three-nothing in the Court of Appeal but he succeeded five-nothing in your Lordships' House. Such results are the way of the world in the appellate courts. The point of citing these two cases, however, is as follows. The first case of Hadmor concerned difficult questions of interpretation of the trade union legislation. In the Court of Appeal the noble and learned Lord, Lord Denning, to support the argument in favour of the interpretation that he had adopted in his judgment, cited a speech of my noble friend Lord Wedderburn of Charlton when your Lordships' House was in Committee on the Bill that became the Employment Act 1980. However, before
he did so, the noble and learned Lord, Lord Denning, said this:
In most of the cases in the court, it is undesirable for the Bar to cite Hansardor for the judges to read it. But in cases of extreme difficulty, I have often dared to do my own research. 1 have read Hansard just as if I had been present in the House during a debate on the Bill. And I am not the only one to do so".
When the House of Lords were discussing the Bill by the noble and learned Lord, Lord Scarman, on the Interpretation of Legislation on 26th March 1981, the noble and learned Lord, Lord Hailsham of Saint Marylebone, the Lord Chancellor, made this confession:
It really is very difficult to understand what [the parliamentary draftsmen] mean sometimes. I always look at Hansard. I always look at the Blue Books, I always look at everything I can in order to see what is meant and as I was a Member of the House of Commons for a long time of course I never let on for an instant that I had read the stuff. I produced it as an argument of my own, as if I had thought of it myself. I only took the trouble because I could not do the work in any other way.
As a matter of fact, I should like to let your Lordships into a secret. If you were to go upstairs and you were a fly on the wall in one of those judicial committees that we have up there, where distinguished members of the Bar…come to address us, you would be quite surprised how much we read…The idea that we do not read these things is quite rubbish…If you think that they did not discuss what was really meant, you are living in a fool's paradise".—[Official Report,26/3/81; col. 134]
When Hadmor went up on appeal, the rule excluding any resort to Hansard by the courts was vigorously restated by Lord Diplock. He said this:
The rule that recourse to Hansard is not permitted as an aid to the construction of an Act of Parliament is one which it is the duty of counsel to observe in the conduct of their clients' cases before any English court of justice. Counsel do observe that duty. They did so in the instant case; none of them made any attempt to refer to Hansard, nor were they given any intimation at the hearing of Lord Denning's intention to do so himself and, in view of the recent decision of this House in Davis v. Johnson, they were entitled to assume that he would not do so.
Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is".
I understand that statement to reflect the prevailing practice of the court.
§ I mentioned the Sikh turban case the very next year for this reason. In it there was of course no citation of Hansard, but I refer to it because if—and 1 emphasis "if"—there is a case for the citation of Hansard to the courts, your Lordships may think that the Sikh turban case exemplifies it. The Court of Appeal, presided over by the noble and learned Lord, Lord Denning, found against the Sikh boy. The Sikhs were not a group capable of classification by reference to their ethnic origins. "Ethnic origins" meant a group distinguished by birth as having by common descent characteristics peculiar to race. The Sikhs were essentially no more than a religious group and not protected.
§ The argument therefore that the Sikhs were a classic example of an ethnic group because of their long shared history and distinctive cultural traditions failed. The decision provoked outrage in some Jewish quarters because it was feared that Jews too might not be protected under the Race Relations Act. The 280 argument that failed three-nothing in the Court of Appeal succeeded five-nothing in this House in its judicial capacity. But I say this. The judgments of the Court of Appeal were closely reasoned by a strong court. The other members were Lord Justice Oliver as he then was, and Lord Justice Kerr. It is by no means inconceivable that the Court of Appeal would have been upheld. It would be an impertinence to suggest that the Court of Appeal was incapable of being correct. If we did not have a two-tier system of appeal but stopped with the Court of Appeal, then its decision would have been final unless the statute had been amended.
Yet resort to Hansard would have made it plain beyond all argument to the Court of Appeal that Parliament's intention was the reverse of its interpretation of the statute. In the other place the Opposition spokesman had sought to introduce "religion" for the express purpose of protecting the Sikhs. In the other place the amendment was withdrawn on the unequivocal assurance of the Minister that the Sikhs were protected. The late Mr. Brynmor John stated, in Standing Committee A on 29th April 1976:
Where any requirements laid down by an employer are notionally equal but, in fact, discriminatory against the Sikhs because of their religion, they would be caught, where it is unjustifiable. by indirect discrimination".
Mr. Fred Willey then withdrew his support for the amendment saying:
I accept…that the minorities on whose behalf we are expressing disquiet will have all the protection within the present definition that they would probably obtain even from an extended definition.
§ In your Lordships' House a similar amendment was withdrawn upon identical Government assurances. This House also debated an amendment to delete the term "ethnic origins" from the list of prohibited grounds of discrimination. The Government however explained that the term was essential to ensure protection for a group such as the Sikhs which was not definable by race, colour, nationality or national origin. It was explained that the term "ethnic origin" went away from the idea of physical characteristics which inform the words "colour" and "race" and introduced the idea of groups defined by reference to cultural characteristics, social organisation and the like. On this explanation the noble Lord, Lord O'Hagan, withdrew his proposed amendment.
§ I venture to suggest that any ordinary person, considering the judgment of the Court of Appeal in that case, would have been unimpressed by the rule excluding Hansard, once informed of these very precise assurances in Parliament. I would add this. I assume that neither the judges of the Court of Appeal nor in this House in its judicial capacity resorted to Hansard in private. Had the Court of Appeal done so, it would have known that the judgment it was handing down was beyond all argument, contrary to the intention of Parliament. Had your Lordships' House in its judicial capacity informed itself of what this House intended in its legislative capacity, that would have been contrary to the rules of natural justice as declared in the Hadmor decision, for the headmaster of the private school concerned, Mr. Dowell Lee, would have had no opportunity to 281 address arguments upon the effect of what was said in Parliament.
§ Yet I recognise that I have given from my own experience a very special example; an example where Hansard would unequivocally have shown that the mischief that Parliament was seeking to remedy included the protection from discrimination of ethnic groups such as the Sikhs. The question I pose is whether Hansard should be admissible in the courts for such a limited purpose only; not as an aid to any and every point of detailed construction; not where anything or nothing can be culled out of debate in either House; but only where Hansard will unequivocally show the ambit of a provision—the mischief at which it is aimed.
I raise for consideration whether the blanket prohibition laid down in Hadmor may not go too far. Is there not, in the words of Lord Reid in 1968 in his judicial capacity:
room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other".
I recognise that in the overwhelming majority of cases resort to Hansard could be of no assistance whatever. Statutes must be interpreted by the judges. I understand that unless there were to be legislation on this subject, it will remain for the courts to determine whether Hansard should be referred to in any circumstances, even in the very limited circumstances that I have canvassed.
§ Two basic reasons are given for the blanket exclusion: one constitutional, the other based on convenience. The constitutional reason is based on a nice but clear distinction. The courts are seeking not what Parliament meant but the true meaning of what Parliament said; for it is by Parliament's enactments, not its intentions, that we are governed. The rule of law requires the citizen to act in accordance with a reasonable interpretation of what Parliament said. What all or any of the Members of this House or another place thought that Parliament meant is neither here nor there.
§ Concerning convenience, complex statutes have to he interpreted daily, not just in the Court of Appeal or in this House in its judicial capacity, but in every court in the land from the lowest to the highest. Free citation from Hansard would hugely lengthen proceedings and almost always to no useful purpose. But that is not to say that there may not be limited circumstances of the kind that I have attempted to define where reference to Hansard could be recognised as sensible and legitimate.
§ 6.6 p.m.
§ Lord Goff of Chieveley
My Lords, lawyers in this country are brought up in the belief which they absorb with their mother's milk that it is not right to stray outside what are mysteriously called the four corners of a statute when they are trying to find out what that statute means. They are taught particularly that it is quite wrong to read parliamentary debates for that purpose.
My noble friend Lord Irvine of Lairg has given two of the reasons which are usually given for that conclusion. In addition it is often said that 282 parliamentary debates are an unreliable guide to what the statute means. It is also said. that Hansard is not readily available to lawyers who are advising their clients or to courts of first instance which are scattered all over the country. These are without doubt formidable reasons. But sometimes in the quietness of the night, when my thoughts stray to forbidden things, I ask myself "Can this be right?" My doubts grow when I contemplate the no doubt numerous situations when a Minister, or indeed a private Member, introducing a Bill, makes perfectly plain what he regards as the legislative purpose and those who support him are in agreement with him.
It is strange that a court, even the appellate committee of your Lordships' House, should deliberately blindfold itself and as a result interpret a statute in a manner which is clean contradictory to the way in which Parliament heard the Bill introduced. Let us make no mistake: this happens. In one case, which I shall not identify, an appellate tribunal, which again I shall not identify, felt itself driven to overrule a previous decision because it had read in a textbook quotation from Hansard which made it very plain that the earlier decision had in this sense been wrongly decided; that it had been decided on a basis inconsistent with what had been said in the relevant parliamentary debates.
When I contemplate such a thing I wonder to myself whether some of us feel quite simply in those circumstances that something must he wrong. Certainly for my part I do not think it is very persuasive to have regard to the two reasons that I have given. Let us take unreliability. It is true that to some extent it can be said that it is difficult to find one's way round Hansard. On the other hand lawyers have many virtues, some of them, I regret to say, unrecognised even by their friends. But one undoubted virtue that they do possess is finding difficulties. This is a classic example where lawyers are ready to find difficulties. I respectfully suggest to your Lordships that if a matter is right in principle one should do it and face up to difficulties as and when they arise on a purely pragmatic basis.
As to availability I have no doubt that it is known to your Lordships that practically the whole of the law of England is now hospitably housed in a memory bank in Houston in Texas. At the press of a button anywhere in this country anyone who subscribes to an expensive system called Lexis can find out from that system what he or she wants to know. I cannot help feeling that our friends in Texas who undertake the provision of Lexis will be happy to add to their collection a few miles of Hansard.
In those circumstances perhaps the time has come to think again about the rule. But, if we abandon our rule of not looking in favour of a practice of sensible looking, the question arises: what help will it be? I must confess that on occasions I, like my noble and learned friend Lord Denning, have taken an illegitimate peep at Hansard. Does it help? The answer must be: not very often. Usually one draws a total blank. The Minister has completely forgotten to say anything about Section 24(1)(c) which one is struggling to interpret. Perhaps its very obscurity stifled debate. Only rarely does one find a clue and seldom does one find a crock of gold. However, one 283 sometimes finds that a glance at Hansard may provide a useful way of knocking on the head some bright but mistaken idea. From a look at Hansard one can discover that whatever Parliament meant it cannot have meant that.
Above all, I believe that if we decide to look we must do so with circumspection. My noble friend Lord Irvine of Lairg suggested some ways in which the looks might be restricted. I respectfully suggest that we must avoid a state of affairs derided by an American critic based upon their unhappy experience of looking, which has led to the conclusion that only if the legislative history is obscure should one turn to the words of the statute itself. However, I cannot help feeling that if we combine Scottish prudence with English common sense we can escape that quagmire.
§ 6.12 p.m.
§ Lord Renton
My Lords, it is a real pleasure as well as an honour to congratulate the noble and learned Lord, Lord Goff of Chieveley, on his maiden speech. Law Lords do not always feel free to speak in our debates as often as we should like to hear them. However, in congratulating the noble and learned Lord on this occasion, I am sure that all noble Lords will join with me in saying that we hope there will be many chances to hear him in the future.
He has chosen a debate on a controversial issue in which to make a non-controversial maiden speech. He had to come down on one side of the fence or the other, and he happens to have chosen the different side of the fence from myself. I should like to comment on one point that he made in order to challenge it in the light of my fairly lengthy experience. He said that the Minister makes plain the legislative purpose. I wish that that were generally so. I shall say more about the subject in a moment; but I have tried to persuade Ministers to agree that Parliament should make plain the legislative purpose by its being stated in the statute.
A further point that I should like to make which arises from the noble and learned Lord's speech is that it is not merely a question of judges having a look at Hansard. If justice is to be done, the judges should hear what counsel say on behalf of each of the parties in a case, whether it be an appeal in your Lordships' Judicial Committee or anywhere else. For judges to take surreptitious looks at Hansard in their own time—even perhaps reading it in their bath—is not a good way of doing justice, in my humble opinion.
The noble Lord, Lord Irvine of Lairg, deserves our thanks for raising the matter. I do not know whether he hoped that in doing so the issue would be resolved once and for all and quite soon. However, it is most important that he should have raised it and we are grateful to him for the way in which he has done so.
I should like to make clear the fact that I am strongly opposed to the use of speeches in debate in either House as an aid for interpretation of statutes by the courts. I am opposed for a number of reasons but my principal reason is that it appears to be a counsel of despair. If statutes made clear the intention of Parliament, were clearly worded and were certain in their legal effect there would be no 284 need for reference to preparatory works—White Papers, Law Commission reports or Hansard—in order to discover what the statute meant and what Parliament intended it to mean. Alas, too often that remains a dark secret. We should have more purpose clauses expressing Parliament's intentions. We should strive more and more for greater clarity of meaning and certainty of legal effect.
However, I have other reasons for opposing the suggestion that Hansard should be used in court. The Committee on the Preparation of Legislation, of which I had the honour to be chairman, considered the whole question, not only of reading Hansard but of aids to interpetation of statutes in the widest sense. In doing so it was greatly helped by the report of the Law Commission when chaired by the noble and learned Lord, Lord Scarman. Our committee came to the firm and unanimous conclusion, as did the Law Commission, that Hansard should not be used as an aid for interpretation.
The practical disadvantages of using Hansard in court, to which the noble Lord made only a brief reference, are forbidding. Necessarily the length and expense of legal proceedings would be increased. It would mean that every court must have sets of Hansard readily available. In the Court of Appeal and in the Judicial Committee of your Lordships' House enough sets must be available for three Lords Justice and five Law Lords. That is a huge logistic undertaking. How many years must Hansard go back? Would it be 100 years or more to the early days? To go back even to 1960 would require enormous book shelf space and the cost of obtaining sufficient back copies would be formidable. It is unthinkable that barristers in their chambers should also have to incur the vast expense and find the space,
If it is suggested that the change of rule should apply only in the future, what should we find? We should find not only Ministerial and Opposition Front Bench speeches, but speeches from any part of either House being made in such a way as to focus on persuading the courts of what particular politicians wanted the statute to mean. It would be much better if the statute itself declared what Parliament intended it to mean.
If the justification for referring to Hansard is to discover "the mischief', which I believe the noble Lord, Lord Irvine, mentioned that a noble and learned Lord had attempted to do in an earlier case, and which Sir Edward Coke in Heydon's case said should be discovered as an aid to interpretation, surely the mischief would be made perfectly plain if we used adequate purpose clauses as recommended by our committee in 1975 and by the Law Commission.
Ministers are responsible for the contents of their statutes subject to voting in Parliament. It is not the draftsman who is responsible. However, Ministers have been very timid about using purpose clauses. I do not include my noble and learned friend the Lord Chancellor in this because he was good enough to introduce a very useful and effective purpose clause in the Legal Aid Act.
In conclusion, perhaps I may say that using Hansard would be contrary to constitutional 285 propriety; contrary to the true administration of justice; and would lead to the increased cost of it. I hope that we shall stick to our present rules and invite the judges to apply them very strictly and not to take surreptitious looks at Hansard themselves.
§ 6.22 p.m.
§ Lord Airedale
My Lords, I am conscious of being less well qualified not only than those who have already spoken but also than most of those who are about to speak in this debate. However, I promise not to detain your Lordships for very long.
The noble Lord, Lord Irvine, quoted from the speech of Lord Reid in the case of Warner v. Metropolitan Police Commissioner. I should like to quote the words which preceded his. This case is in the 1968 All England Law Reports, Vol. 2. Lord Reid said:the layman may well wonder why we do not consult the Parliamentary debates for we are much more likely to find the intention of Parliament there than anywhere else. The rule is firmly established that we may not look at Hansard and in general I agree with it".He cited various objections to which the noble Lord, Lord Renton, referred this evening. Lord Reid went on—and these are the words quoted by the noble Lord, Lord Irvine⅀but I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other".I wonder whether Lord Reid was thinking of the use by the parliamentary draftsman of ambiguous words and phrases.
Let us take the word "calculated". Calculated sometimes means "likely" and sometimes, "intended". In Committee the Minister can be driven into saying what he means and whether he means "likely" or "intended". That short excerpt from Hansard would be of the greatest assistance to the court in interpreting the statute. Let us take the ambiguous phrase, "the owner of gold bullion in New Zealand". At first sight it is not clear who or what has to be in New Zealand for the section to apply. Is it the owner, the gold bullion, or both? A mere glance at the Minister's speech introducing the Bill would probably make that abundantly clear.
However, there is another side to the coin and that is the side on which we find the noble Lord, Lord Renton. Perhaps I may give an example which will please him. Let us suppose that an intending litigant believes that some pearl of wisdom is to be found in the parliamentary proceedings on last year's Housing Bill. That Bill was in Standing Committee in the Commons for three months; it occupied 1,600 columns of Hansard but at least they are all gathered together in one place although they occupy two volumes. The Bill then came to your Lordships' House. It was six days in Committee, four days on Report and of course those proceedings are not gathered together in one place. One has to search among the daily parts of Hansard where the proceedings are mixed up with other business. That is no fault of Hansard, of the usual channels or of anybody else. All one can say is that the searcher after his pearl of wisdom in that case was in for a very long search.
286 Surely the difficulty is that one has to formulate a rule. The noble Lord, Lord Irvine, said that he had attempted to define the circumstances where Hansard could be consulted. However, I believe that we shall be in great difficulty unless we formulate a very firm rule. I do not believe that anybody yet has managed to formulate the rule. If by the end of this debate we have come somewhere near to formulating the rule to admit Hansard where it is beneficial to do so and exclude reference to Hansard where it would clearly be disadvantageous, our labours will not have been in vain.
In conclusion, perhaps I should mention one matter which I believe has spontaneously presented itself independently to my noble friend Lord Hooson and myself. It is this. The courts must. if they are to do their job properly and efficiently, know precisely what is the mischief at which the legislation is aimed. Why do we not in appropriate cases revive the practice which used to be observed of having a preamble to the Bill in which the mischief aimed at is firmly and clearly laid down? The noble Lord, Lord Renton, prefers the purpose clause. Perhaps it does not matter which we have. Surely that is what is wanted, because then the judge does note have to look at Hansard. He has his purpose clause or preamble right there, as the Americans would say, on page one of the Act.
Finally, in passing, I suppose the preamble most familiar to your Lordships is that to the Parliament Act 1911:whereas it is intended to substitute for the House of Lords as it presently exists a Second Chamber constituted on a popular instead of hereditary basis".
§ 6.29 p.m.
§ Lord Griffiths
My Lords, as the first of the judicial brethren to speak after the maiden speech of my noble and learned friend Lord Goff, perhaps I may extend to him my sincere congratulations on his contribution and tell your Lordships how profoundly relieved I am to find that I am speaking on the same side of the debate.
I have long thought that our courts have placed an unreasonable fetter on themselves by refusing to look at the parliamentary history of an Act. We profess to attempt to give effect to the intention of Parliament when we are construing a statute and yet we refuse to check whether Parliament said what its intention was, what it intended to cover or what a particular word was perhaps intended to mean.
In this attitude we are out of step with all the other great common law countries. Your Lordships will have already heard that in the United States they have resort to the legislative history of enactments. Perhaps they are overenthusiastic about it. They have resort to it in Canada, in New Zealand and in Australia. Since coming to your Lordships' House I have become even more sure that the time has come to change our practice.
I was surprised to discover how much of our judicial work is concerned purely with statutory construction. I find that in the past two years a little over one-third of the appeals we have heard concerned the construction of a statute or 287 subordinate legislation. They are invariably difficult and almost always involve two different constructions having been adopted in the courts below. Sometimes the judges below are split one against three and not infrequently two on each side. Therefore, the words are truly ambiguous and we are trying to pick the meaning that Parliament intended them to have. Why should we not look to see whether, say, the Minister in introducing the Bill explained what a section was intended to cover and what it was aimed at? If his explanation is accepted without challenge, surely that is a pointer to the meaning that we should give to the section.
I stress of course that this should be an aid for construction and used only in a case of true ambiguity. If the words can only sensibly be given one meaning, it is that meaning they must bear, no matter what the intention that lay behind them.
One matter puzzles me. I refer to a passage in a speech by the noble and learned Lord, Lord Scarman, in a case in this House called Beswick v. Beswick decided in 1968. He said:Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purposes of interpreting statutes".Well, if newspapers are entitled to look at Hansard and to quote it, why should not the judges he entitled to do so?
I have not been able to find this parliamentary rule stated elsewhere. Frankly, I do not understand it and I should welcome any enlightenment that your Lordships can throw upon this matter. I should have thought that it is up to the judges, in the form of the Law Lords, to reconsider their past practice and to decide whether they should depart from it. Therefore, I welcome this debate and I will profit greatly from listening to the views expressed by your Lordships, particularly those of the noble Lord, Lord Renton, who expressed a contrary opinion to my own. However, I wonder whether it is right that there is any parliamentary rule which fetters our decisions.
I do not believe that the task of researching Hansard is nearly as formidable as has been supposed. That is the principal reason given for denying access to Hansard. I have had the matter tested. I do so in this way. I go to those delightful ladies who assist us in the Library. At half-past 10 I say to them, "We want to look very carefully at the meaning of (say) Section 25" in such-and-such an Act. "Could you give me from our own debates and the debates in the other place anything that may have been said about that section?" At lunchtime the books are out and have been flagged. By the time we go back at two o'clock I know whether or not there is anything that is of assistance.
Of course at the moment I am not allowed to use it at all and naturally I put it out of my mind, but usually there is nothing that is of assistance for the simple reason that at the time nobody thought that the words were ambiguous and the ambiguity has only later emerged. Nobody put their mind to it at all at the time. However, sometimes there is gold at the 288 bottom of the mine and your Lordships have already been given a number of examples. I am bound to say that it is folly to deny ourselves access to such material.
It is not right that we would need volumes of Hansard in multiples available for all appellate judges, trial judges and so on. We carry out litigation in this country by relying on the Bar. The Bar does a formidable amount of research for us. If we could not rely on the Bar we could not carry on. All judges need research assistance, as they do in most other countries. It is not a formidable task for the Bar to research a section in Hansard if it is minded to do so. One can rely on the Bar to bring something to the attention of the court only if it really assists. If it does not, the Bar will not bother with it. Such assistance would be a fraction of the research that the Bar normally carries out. As I said, it will be only rarely that it will throw real light, but to deny such material to ourselves as a tool seems to me to be quite wrong.
§ 6.37 p.m.
§ Lord Donaldson of Lymington
My Lords, it is a real and personal delight to be present in the House this evening on the occasion of the maiden speech of my noble and learned friend Lord Goff of Chievely, The excellence of that speech will take no judge by surprise and, indeed, will take no member of the Bar by surprise. I join in the congratulations which have already been tendered to him.
There are two primary objections to referring to Hansard in the context of litigation. They have already been mentioned. First is the constitutional objection to which I attach enormous importance. If we go down the line indicated by my noble and learned friend Lord Griffiths there is a real risk that we shall be asked to give effect not to the will of Parliament but to the will of the Executive. I would regard that as wholly disastrous.
There is a further objection. The ordinary citizen who is called upon to govern his day-to-day life in accordance with the statutes of this country should be able to ascertain what those statutes mean. Whatever may be the possibilities of putting it on Lexis in Houston, I find difficulty with the idea of the ordinary citizen consulting Hansard by Lexis.
The second is a practical objection. I fully appreciate that when your Lordships' House is sitting in its judicial capacity it has a great deal more time at its disposal than those of us who work down the Strand. The prospect of our having sufficient staff in the Strand to invite someone to consult Lexis on behalf of eight divisions of the Court of Appeal, sitting simultaneously and dealing with a vast variety of problems, many of them involving statutory construction, I find quite appalling. Furthermore, we are engaged there in a continuous operation, which will reach something of a crescendo in the next two or three months, of trying to cut down the cost to the parties of proceedings in court and to reduce delays on hearings. Any licence to research Hansard I fear would increase the costs vastly, whether it took the form of costs incurred on behalf of the judiciary or costs incurred on behalf of the Bar or solicitors. I am sure that it would increase both the costs and the 289 delays. The rule has stood for a century and hitherto I have never heard it seriously challenged.
The noble Lord, Lord Irvine of Lairg, does not challenge it as a general rule. He says "Let us make a small exception. Let, Hansard be admissible as an aid to construction when, but only when, it will be decisive". How shall we as the judges, in deciding what is admissible and what is not, know that a particular reference to Hansard is permissible whereas another is not without first looking at the whole of Hansarddealing with the topic? It really is unworkable. I am sure that the noble Lord, Lord Irvine of Lairg, will think that I am being singularly reactionary and obstructive. For one moment pehaps I may be constructive.
There are undoubtedly occasions when judges do need to know what was the mischief at which the Act was directed. To put it into more homely language, they need to know what was the legislative object of the exercise. It arises in two cases; one is where the wording is obscure. Of course it should not be obscure but even the best of parliamentary draftsmen are sometimes overworked and may make a slip, and obscurities of wording occasionally arise. The second situation in which obscurity arises is where the Act comes to be applied in circumstances which may not have been contemplated by Parliament. Then we need to know.
How are we to know? There is a precedent that is provided for in Section 3(3) of the civil Jurisdiction andJudgments Act 1982 which is giving effect to an international convention, and to that extent it may be slightly different. It provides that,Without prejudice to the generality of subsection (1), the following reports (which are reproduced in the Official Journal of the Communities), namely—So in relation to that Act Parliament has said to us, the judges, "You may look at those reports as an aid to construction."
may be considered in ascertaining the meaning or effect of any provision of the Conventions and shall be given such weight as is appropriate in the circumstances.".
- (a) the reports by Mr. P. Jenard on the 1968 Convention and the 1971 Protocol;
- (b) the report by Professor Peter Schlosser on the Accession Convention,
That has put the thought into my mind why cannot we have reports upon all Acts of Parliament? I emphasise that they should not be provided by the Executive but by an officer of Parliament who will be independent of the Executive, such as Speaker's Counsel. There may be other people who would be equally suitable. Once the Act has been passed I should like to see such an officer prepare a report on the Act. He will have known all that has gone on and he will know what there were in the way of travaux préparatoires. He will know what has taken place in the debate and the report will contain all such material and information as in his view could assist the courts hereafter in interpreting the Act of Parliament.
I appreciate that if one stops there it will be open to this officer in effect to amend the will of Parliament. But that can be dealt with very easily. If the report is published as a statutory instrument it is capable of being annulled by the vote of either House 290 of Parliament but it can never be amended. In that way we shall not have the Executive coming forward and amending the report on the Act. By all means let the House use its majority to annul it if it considers it appropriate to do so but, if it does not, then the report will stand as the authoritative and possibly the only source to which the court should refer in trying to ascertain the will not of Ministers or shadow Ministers but of Parliament itself.
§ 6.45 p.m.
§ Lord Templeman
My Lords, the task of the courts in construing Acts of Parliament was explained by Lord Reid in 1967. He said in the case of Beswick v. Beswick:In construing any Act of Parliament we are seeking the intention of Parliament, and it is quite true that we must deduce that intention from the words of the Act. If the words of the Act are only capable of one meaning we must give them that meaning no matter how they got there. If, however, they are capable of having more than one meaning, we are, in my view, well entitled to see how they got there. For purely practical reasons we do not permit debates in either House to be cited".Your Lordships will observe that Lord Reid did not attempt to frighten the life out of a poor little Lord of Appeal in Ordinary by telling him that there was some great constitutional objection or anything involving the Executive. He said that there were "purely practical reasons".
I will consider presently what those purely practical reasons amount to. Lord Reid certainly recognised that it is permissible to transfer and to travel outside the four corners of the Act if the language of the Act is ambiguous. In a later case in 1975 the Appellate Committee, which included Lord Reid, considered the report of a committee appointed by the Lord Chancellor. That committee had produced proposals for an Act and a draft Bill. All five members of the Appellate Committee read the whole of the report. They all looked at it to find out what the mischief was and then they all said "But we will ignore it in construing the Act".
My mind is not sufficiently elastic to read a report, to consider it for one purpose and then to ignore it for another. I do not follow the logic of reading the report in order to determine the mischief sought to be remedied but ignoring it for the purpose of construing the Act. if a report of the committee appointed by the Lord Chancellor can be considered, I wonder why Hansard may not be consulted. Once it is admitted that it is sensible and proper for a court to travel outside the words of an Act in cases of ambiguity, the only question must be how far and in what circumstances that course may be adopted.
Everyone uses the expression "the intention of Parliament" and I use it. In the old days when it was impossible to tell whether Pitt was coming in or Fox was coming out, when Palmerston could change the mind of the House of Commons in three-and-a-half hours or Gladstone could overwhelm the House of Commons with lofty platitudes in a speech lasting five-and-a-half hours, from time to time it was indeed difficult to discern the intention of Parliament. But Parliament is not a separate person; it is not an animal that has its own existence. It cannot have an intention that is separate from its Members. In these 291 days, though all speeches in Parliament are equal, some are more equal than others.
The intention of Parliament enshrined in an Act of Parliament these days is the intention of the Minister who introduced the Bill and of the Minister who accepts or puts forward amendments in the course of the passage of the Bill to the statute book. The Minister is not a dictator. In the first place he must obtain the approval of the Cabinet. In the second he must obtain the approval of both Houses of Parliament. That is why we have the lengthy procedure of Second Reading, Committee and the Report stages and Third Reading. Any Bill that becomes an Act reflects the intention of the Minister responsible for the Bill. It seems sensible that in the case of an ambiguity of language the intention of Parliament may be sought in an authoritative explanation by the Minister himself. For my part, I do not see any constitutional objection to going back to the parent in order to find out the meaning of the lusty child.
The purely practical reasons to which Lord Reid alluded in justifying the practice of not consulting Hansard are two in number. First, it is said that research into Hansard can take a long time. It may increase the burden on lawyers and even increase the length of lawyers' arguments. No one would be anxious to produce these effects. Secondly, it is said that research into Hansard may not assist the court in construing the statute, either because Parliament never envisaged the problem which perplexes the court or because the speeches of the Minister and other speeches are vague and contradictory or silent on the point at issue.
In many cases these reasons are valid and compelling, but there are other cases. There are cases in which Hansard will immediately clear up an ambiguity of statutory language. So far as delay and costs are concerned I found that Hansard is well-indexed and sometimes, though rarely, furnishes a speedy and blinding illumination of the problem that perplexes the court. If the result of litigation depends on the construction of an Act of Parliament, which in turn depends on the intention of Parliament, then the time and trouble taken to consider Hansard set against the other costs of litigation are negligible.
This proved to be the case in the recent decision of this House in Pickstone v. Freemans, reported in 1988 and decided on 30th June. In that case there were two possible constructions of a regulation approved by both Houses of Parliament. On one construction a woman was debarred from claiming equal pay for work of equal value; on another construction she was not. The narrow construction fitted the language of the Act, which was so expressed that in the courts below they felt compelled to give effect to it, but it produced a rather disturbing result.
The other construction involved reading an implication into the words of the Act but produced a more rational result. A short examination of Hansard, when the Appellate Committee were plainly perplexed, revealed that the construction that produced a more rational result corresponded to the intention of the Minister in introducing the 292 regulation, and that intention was clearly set out in his speech.
I plead guilty, without blushing, to the charge of having consulted Hansard and having reported the results to my colleagues. My noble and learned friend Lord Keith of Kinkel said in his speech in that case:The draft regulations were not subject to the parliamentary process of consideration and amendment in committee, as the Bill would have been. In these circumstances and in the context of section 2 of the European Communities Act 1972, I consider it to be entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft was presented by the responsible Minister and which formed the basis of its acceptance".I would suggest that any rule that manacles the courts in endeavouring to ascertain and enforce the intention of Parliament ought to be tempered by a little common sense on the part of counsel and judges. In most cases it will be apparent to counsel that Hansard would be of no assistance because, for example, a novel problem has arisen. In other cases counsel may look, or ask his newest pupil or his solicitors to look, at Hansard, which, as I have said, is well indexed. There is no question of everybody having to have reams and reams of Hansards. Each of the four Innes and the Law Society will have Hansard. There is a Hansard here, and that, I should have thought, would be perfectly sufficient. If anybody is in the provinces, there is always the telephone in chambers, and people can be reached. In practice these things are not decided in one day. Lawyers take time to prepare their cases.
In many cases Hansard will he unhelpful either because it does not deal with the point or because the speeches themselves are not helpful. Counsel will know that it is no good referring the court to a statement in Hansard unless that statement is clear and authoritative. If counsel considers that in an exceptional case Hansard is relevant and important, the judge can be furnished in advance with photocopies of the only extracts that counsel on both sides wish to pray in aid.
A judge who reads this material is entitled to declare at once that he derives no assistance from the passages in Hansard and to decline to hear any oral argument based on Hansard. But he is also entitled, in my view, to invite counsel to consider whether a particular statement in Parliament that has been drawn to his attention supports or reinforces the resolution of a real or alleged ambiguity in the words of the Act under consideration. If, as in Pickstone's case, Hansard supplies the answer. I would not for my part spurn the answer because of its source.
I have time to make only three further points. First, there is a suggestion in one of the authorities that it is improper for a judge to consult Hansard. As a Member of this House, I am reluctant to be manacled or handcuffed. Unless and until the Library of this House terminates its subscription to Hansard I warn that there will be exceptional occasions on which I shall be seen to slink into the Library with my coat collar turned up in order to seek enlightenment from the true and fascinating record of the source of all legislation.
Secondly, it has been suggested that although it may be good enough for the House of Lords to read Hansard, judges in the lower courts cannot be 293 allowed to do so. Judges in the lower courts deal splendidly with many difficult problems of statutory construction. It is only a minute proportion that reaches this House. In an exceptional case I for my part think that judges of the lower courts, as judges in this House, need all the help they can get, and if Hansard assists, they should be allowed to be helped.
Thirdly, I shall at some future date respectfully and almost inaudibly whisper in the ear of my noble and learned friend the Master of the Rolls—whom we all admire for his administration of the Court of Appeal, and we are all glad to see him come to this House to assist us in our debates—that if in any very exceptional case one of his 22 Lords Justices opens the appropriate volume of Hansard, it is possible—I put it no higher than this—that the small proportion of cases in which the decisions of the Court of Appeal do not find favour on appeal to this House will be even further reduced.
§ 6.57 p.m.
§ Lord Lloyd of Hampstead
My Lords, this is not a subject that is calculated to arouse great passion, but nevertheless it is one, as we have witnessed this evening, that is capable of producing acute differences of opinion among some of the most acute of our legal intellects. I am sure that your Lordships have been greatly stimulated by the differing views that have been expressed on what might seem on the face of it to be a fairly straightforward matter.
This has been a subject of controversy for a long time. The actual rule itself appears to go back at least to a case decided in 1769, in days when of course Parliament was a very different sort of organisation from what it is today. But the rule, as I understand it, has two aspects. If I were to quarrel to any degree with the formulation of this particular Motion, it would be that in some respects it emphasises the less important aspect.
The two aspects of this rule are first the one that has been fully discussed this evening; namely, the question of whether judges can refer to Hansard in interpreting statutes. The other is whether they can refer to reports such as Royal Commission reports, or reports of the Law Reform Committee or the Law Commissions in interpreting statutes. On the face of it, it may seem strange that there should be any doubt about that second aspect, because what could be a more obvious source of information in deciding the meaning of a statute than a report that is deliberately aimed at explaining the need for the statute, and indeed probably producing a draft?
The fact remains that even at the present day there are recognised to be considerable limitations on referring to such reports. Various stratagems, if I may use the word, are deployed, such as saying that reference should be made to the mischief or possibly to the surrounding circumstances in which the statute was passed. One might have thought that the time had come for change, particularly having regard to the fact that both the English and Scottish Law Commissions, in an. excellent joint report in 1969, recommended that such reports should be freely available for reference in interpreting a relevant statute. So I would venture to suggest that that aspect 294 of the rules certainly ought to be excluded at the present day.
The question of reference to Hansard is of course more controversial, as we have seen; but there seems to be no reason in principle why a court should not have at its disposal any relevant material which will assist it in reaching a conclusion as to the proper meaning of words before it. I would respectfully agree with those who say that the real objection, if there is one, is a practical or logistical one. Is it going to put the court in a difficult situation if it has to refer to Hansard and do a lot of research to discover whether there is an appropriate passage? That is one aspect.
The other aspect is the logistical problem of how, if one is going to alter the law by statute, one could draft the amendment so as to concentrate on those cases where some definite clarification is to be obtained, as against those which would simply clutter up the court, with a lot of unnecessary work and time being involved. My noble and learned friend Lord Simon of Glaisdale, in a debate which we had some time ago relating to this matter, quoted in his characteristically pungent style what Aneurin Bevan had said:Why gaze in the crystal ball when you can read the book?".Indeed, the logic of that appears unanswerable. The noble and learned Lord, Lord Simon, suggested that where a Minister gives a specific answer in relation to the meaning of a word or a provision in a statute the answer should be incorporated in the statute. I confess that I am not altogether clear as to what the noble and learned Lord intended when he made that suggestion—whether he intended that some kind of note should be added or whether perhaps the wording should be reconsidered and rephrased to take into account his observations as to what the specific meaning should be. Clearly there is a mechanical problem, which may not be insuperable, as to how such a suggestion might be embodied in a statute.
However, the fact of the matter is that these difficulties are almost certainly not insuperable and it should be possible to give our thoughts freedom to refer even to Hansard, although one would imagine they would do this only very rarely. One has to take into account the fact that at the present time we are very much more in contact with civil law systems, having regard to our membership of the Common Market, and English lawyers are becoming increasingly aware that continental courts adopt a much freer attitude towards interpretation.
That applies also to the use of what is called legislative material in order to elucidate the meaning of statutes. Even so, continental courts are not at all happy to refer to parliamentary debates. My understanding is that they do this very infrequently, and on the whole when they talk of using legislative material what they really mean is having regard to reports such as those prepared by parliaments or extra parliamentary bodies in connection with the production of draft legislation. Indeed I have heard it said, for instance in relation to Sweden, that very few judges will take the trouble to look at parliamentary proceedings. Nevertheless there are these exceptional 295 cases and it seems strange at the present day to adopt the phrase which I think the noble and learned Lord, Lord Griffiths, used, that the judges should, so to speak, manacle themselves and deprive themselves of what might in very exceptional cases be a useful pointer to the appropriate meaning of a statute.
Perhaps one important point that is overlooked when constitutional arguments are relied upon in this context is that we are not talking about provisions which would compel a court to adopt a meaning which is attributed to a Minister in a particular part of Hansard. What we are concerned about is having a pointer or guide for the court which the court can either accept or dismiss in accordance with its own good judgment. Once one accepts that, it seems that the only difficulty with which one is faced—and it appears to be the only one about which Lord Reid, that very eminent and learned judge, was troubled—is the practical problem. And even he accepted that in exceptional cases that practical problem should be overlooked.
So to sum up the argument, I would venture to submit that the time has now come squarely to face this question. We have been arguing about it for a very long time without any clear result and one would hope that the time has now come when the law should be clearly recognised. The judges are quite entitled, if they think it appropriate, to look at Hansard, possibly with the aid of Lexis, which our higher courts will have at their disposal. Of course county courts and magistrates' courts around the country do not have all the facilities possessed by the higher courts. One does not expect that and they will do the best they can without them. But when it comes to cases which are sufficiently important to come before our higher courts, I would submit that it is appropriate that the courts should be given this facility. Of course it may be a question of whether they should be given it by legislation. One could possibly hope that the House of Lords, in its judicial wisdom, might come to the conclusion that this is an appropriate moment for it to introduce a new rule.
§ 7.9 p.m.
My Lords, I venture to rise, as a humble practitioner, to try to inject an element of practicality and reality into this rarefied atmosphere. I venture to think that some of your learned Lordships have forgotten what it is like to be in real practice. Of course I accept that there are rare cases in the highest courts where reference to Hansard will assist in getting the right result.
Of course I accept that if you have the facilities of the House of Lords Library, it is not unduly difficult to find the references to the relevant passage, if there are any, in Hansard. Though I was not entirely clear quite why the noble and learned Lord, Lord Griffiths, puts the lady to the trouble of finding such things if he is then going to put them wholly out of his mind.
I accept that in the context of a case in your Lordships' House the amount of extra work, and therefore the amount of extra cost, involved in counsel also looking at Hansard is minimal. However, I venture to remind your Lordships that 296 the great majority of cases are not heard in this House, nor indeed even in the Court of Appeal, but in magistrates' courts, in county courts, in criminal courts and in other courts spread around the land.
If in every case where there is any question of the construction of a statute it is permissible to refer to Hansard, the cost of preparing those cases will greatly increase. Moreover, I very much venture to doubt that the benefit incurred in a rare case justifies the expenditure, time and effort involved in that research.
Naturally I accept that in the great majority of those cases Hansard will not in fact be of much use. However, that does not mean that the practitioner who will argue the point will not, if he is doing his job properly, still have to look. Indeed, very often one has to look for authorities and cannot find them. But if we are going to do our job properly, we must all look at Hansard to see whether there is any help available. Then, inevitably, the cost of preparing the cases will greatly increase.
Perfection of justice at enormous expense is by no means necessarily desirable. It may be better to have somewhat less than perfect justice occasionally and keep—or seek to keep—costs down, rather than to allow the perfect to drive out the good.
It is no answer to this point for the noble Lord, Lord Irvine of Lairg, to suggest that one can only refer to Hansard if it unequivocally helps. Before one can know whether it unequivocally helps, one must look to find out. Therefore it does not exclude the research. Further, when one finds whether it helps at all, one will still cite it—even though, perhaps, pretending that it is unequivocal—if it is going to be of any assistance. Justice was only meant to look at the negotiations leading up to a contract if they plainly resolve the ambiguity. But, inevitably, if one thinks they help at all, one tries to get them in saying that they will do that. Therefore, in no way can one reduce the amount of research one will have to do by some test such as that suggested by the noble Lord, Lord Irvine of Lairg.
Nor can one have, I do not think, a rule by which one can only refer to Hansard in the higher tribunals. In a way it is an attractive thought, but if one had that rule it would mean that a statute meant one thing in the court of first instance and another thing in the higher court. Surely that cannot be right.
Therefore, however great the logic is, if one is trying to find the intention of Parliament, one should not deny oneself any course. Moreover, however practical it is to do so in your Lordships' House, I venture to say that one should have real regard to the burden that it would put not just upon the Bar, but also upon solicitors and practitioners in the country—as well as those in London—if one was constantly rushing off to look at Hansard to see whether there was any help, even if one was going to he most frequently disappointed.
So I venture to suggest to your Lordships that really the rule as it stands at present is the way that it should be. If perhaps in cases heard in this House a little tacit cheating goes on, well then that may be a good compromise.
§ 7.15 p.m.
§ Lord Ackner
My Lords, my essential purpose in attending this debate was to try and absorb the words of wisdom of the distinguished and learned speakers who have spoken and those who are about to speak. It was also to savour, once again, the Swiss-watch precision of my old colleague and friend the noble and learned Lord, Lord Goff, to whose judgments I so enjoyed listening in the Court of Appeal in those far off relaxed days when we were allowed to read our judgments rather than to hand them down. I warmly congratulate him on his maiden speech and greatly look forward to many such future occasions.
I fear that I must confess that I am nothing like as venturesome as some of my noble and learned friends. I, no doubt through my own inadequacies, find the risk of being confused by the rhetoric of counsel quite sufficient without going off secretly to some library to see whether I can add to that confusion by reading what has happened in one or other of the Houses of Parliament.
I am happy to see that I am in good company in that approach, not only because of those who have already spoken but also because I refer to three of the most outstanding of the Law Lords in this century whose views are conveniently to be found in a relatively recent case in 1975, not 1966; namely, Black-Clawson International Ltd. As your Lordships might have expected, when referring to those three outstanding Law Lords, I refer to Lord Reid, Lord Wilberforce and Lord Diplock. Perhaps I may quickly refer to what they said in that cited case which concerned the statutory interpretation of Section 8 of the Foreign Judgments (Reciprocal Enforcement) Act 1933. Lord Reid said:We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. In the comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further inquiry is permissible…One must first read the words in the context of the Act read as a whole, but one is entitled to go beyond that. The general rule in construing any document is that one should put oneself 'in the shoes' of the maker or makers and take into account the relevant facts known to them when the document was made. The same must apply to Acts of Parliament".He then adds this qualification:Construction of the provisions of an Act is for the court and for no one else. This may seem technical but it is good sense. Occasionally we can find clear evidence for what was intended; more often any such evidence, if there is any, is vague and uncertain. If we are to take into account evidence of Parliament's intention the first thing we must do is to reverse our present practice with regard to consulting Hansard. I have more than once drawn attention to the practical difficulties that would involve, but the difficulty goes deeper. The questions which give rise to debate are rarely those which later have to be decided by the courts. One might take the views of the promoters of the Bill as an indication of the intention of Parliament but any view the promoters may have had about questions which later come before the court will often not appear in Hansard and often those questions have never occurred to the promoters. At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said. The difficulties in assessing any references there might have been in Parliament to the question before the court are such that, in my view, our best course is to adhere to present practice".298 The noble and learned Lord, Lord Wilberforce, dealt with the constitutional aspect which has already been referred to. He said:In my opinion it is not proper or desirable to make use of…anything reported as said in Parliament, or any official notes or clauses…The second reason is one of constitutional principle. Legislation in England is passed by Parliament, and put in the form of written words. This legislation is given legal effect upon subjects by virtue of judicial decision, and it is the function of the courts to say what the application of the words used to particular cases or individuals is to be. This power which has been devolved upon the judges from the earliest times is an essential part of the constitutional process by which subjects are brought under the rule of law—as distinct from the rule of the King or the rule of Parliament; and it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say. The saying that it is the function of the courts to ascertain the will or intention of Parliament is often enough repeated, so often indeed as to have become an incantation. If too often or unreflectingly stated, it leads to neglect of the important element of judicial construction; an element not confined to a mechanical analysis of today's words, but, if this task if to be properly done, related to such matters as intelligibility to the citizen, constitutional propriety, considerations of history, comity of nations, reasonable and non-retroactive effect and, no doubt, in some contexts, to social needs. It is sound enough to ascertain, if that can be done, the objectives of any particular measure, and the background of the enactment; but to take the opinion, whether of a Minister or an official or a committee, as to the intended meaning in particular applications of a clause or a phrase, would he a stunting of the law and not a healthy development".Lord Diplock also dealt with the constitutional aspect of the matter and I shall read a short passage from him. He said:The acceptance of the rule of law as a constitutional principle requires that the citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it the court must give effect to what the words of the statute would be reasonably understood to mean by those whose conduct it regulates. That any or all of the individual members of the two Houses of the Parliament that passed it may have thought the words bore a different meaning cannot affect the matter. Parliament, under our constitution, is Sovereign only in respect of what it expresses by the words used in the legislation that it has passed".Finally, from the same report perhaps I may make a brief reference to the speech of Lord Dilhorne whose knowledge of parliamentary procedure was perhaps unrivalled in the judicial sphere. He said:In the course of the passage of a Bill through both Houses there may be many statements by Ministers, and what is said by a Minister in introducing a Bill in one House is no sure guide as to the intention of the enactment, for changes of intention may occur during its passage".I shall make only the following short points: first, there is the suggestion of limited application. It has been suggested that the use should be limited to a case of clear equivocality. The ingenuity of counsel will stretch the word "equivocality" as far as it can be stretched. We all know that it can go a long way. Secondly, if the proposal is permitted, it will encourage sloppiness in drafting, because draftsmen can say, "We need not worry too much about this. The Minister has made the point clear in Hansard. They will find it eventually even though the case is in the county court or the magistrates' court".
Finally, I adopt what the noble Viscount, Lord Bledisloe, said. So much of our legislation now (the Housing Acts, the Rent Acts, the matrimonial Acts and new Acts in that field) has its beginnings in the county court. How on earth will the county court judge cope with one counsel referring to one small portion of Hansard? The present rule is sound in 299 practice, is sound constitutionally and should be adhered to.
§ 7.26 p.m.
§ Lord Hooson
My Lords, I am bound to admit that when I first read this Motion in the name of the noble Lord, Lord Irvine of Lairg, I thought that he had put it down with his tongue in his cheek. At that time I thought that he could hardly have expected to have the support of no fewer than three noble and learned Law Lords in the debate.
Having listened to the fascinating debate, I have reached what many of your Lordships might describe as a typical Liberal conclusion. I agree with one side of the argument in theory and the other side in practice. Perhaps I may take the point of the theory. It is absolute nonsense to believe that our courts would interpret a section of an Act of Parliament directly contrary to the intention of Parliament itself. There should be some means whereby the general intention of Parliament can be ascertained simply.
My learned friend and I, as he adverted to in his speech, when discussing the matter, thought that there was a good deal to be said for the revival of the old preamble, or some other such provision, which should be carefully drafted by Parliament so that the courts could readily see the general intention and purpose of Parliament spelt out. I would go along with that proposal.
We want to look at the procedure of Parliament itself in the light of the setting up of the Law Commission and the way that it now drafts Bills dealing with lawyers' law. There is a good deal to be said for allowing an interrogatory system with a joint committee of both Houses, calling civil servants and others before it. The framing of our legislation could be usefully revised, but that is a matter for a different debate.
Let me turn to the other side. I entirely agree with the noble Viscount, Lord Bledisloe, who spoke from his experience at the Bar, and the noble and learned Lord, Lord Donaldson. The practicalities have been grossly underestimated by those who have advocated the reference to parliamentary debates. One cannot confine the matter to the House of Lords. The noble and learned Lord, Lord Griffiths, spoke of his experience of asking a charming young lady in the Library to look up various references for him.
Of course that can be done in your Lordships' House, but in practice once one allows reference to parliamentary debates in the interpretation of statutes, solicitors and young barristers, who by and large are people of infinite resource, will go before the magistrates' court and the employment tribunals and drag with them Hansard, and selected pieces of Hansard, a reference in an obscure committee or on Second Reading, when the section has been changed during debate. All those matters will be investigated by courts at every level. With the greatest respect to the noble and learned Lords who supported the idea, I do not think that they have considered the practical implications of what they advocate. It seems to me that the very process is difficult.
300 Perhaps I may dwell for a little on my experience in another place. If one has the interpretation, say, of a Section 24, one goes to the Second Reading in another place. One then finds that it was Clause 19 and the Minister explains what the intention of Clause 19 was. It is amended in a committee in another place, but by that time it is Clause 21 and it has changed somewhat. The interpretation and the intention are changed and even the Government who are presenting the Bill have changed. It comes to your Lordships' House and there a more substantial amendment is moved. By the time the clause goes back, it is Clause 24. A substantial amendment was moved here. Where do we find the intention? Was it the intention as expressed originally by the Minister? Was it the intention as expressed in Committee in the Commons? Was it the intention expressed by the mover of the amendment that was carried in your Lordships' House? Which was the intention of Parliament? I think we should be embarking on a very dangerous course.
I entirely agree with the noble Lord, Lord Irvine: one comes across situations where there is an interpretation of a section of an Act of Parliament which causes people to cringe and is undoubtedly directly contrary to the intention of Parliament. I have experience of appearing for local authorities, for example, which were concerned with the Welsh language. They were found guilty of racial discrimination under the Race Relations Act when that Act was certainly never intended to deal with such a matter as the use or non-use of the Welsh language as a qualification for jobs. So we all suffer from time to time from the kind of unusual interpretation that is given.
I think we need a very much wider debate on the idea that we ought perhaps to change the way in which we legislate in certain respects, particularly in the light of what has happened now we have the Law Commission so very well established. There ought to be a means for Parliament itself to consider what its purpose was, both at the commencement of the parliamentary journey of the Bill and at its conclusion. Something like a preamble or a clause of this kind should be considered very carefully by Parliament.
In the meantime I can only reflect in the comfort that neither this House nor the other place can control what the noble and learned Lords read at bedtime, in their baths or even in the Library. There is no doubt that they might be tempted from time to time to have light reading when they are considering the interpretation of an important section of an Act and to look at the debates in Parliament to see whether they derive inspiration. However, I think we should leave it at that.
§ 7.33 p.m.
§ Lord Elwyn-Jones
My Lords, this has been a fascinating debate. In the first instance I should like to compliment my noble friend Lord Irvine of Lairg on his initiative and ingenuity in introducing this matter before us. He produced what for me at any rate has been something of a judicial headache after listening to the controversial views which have been expressed.
301 The weight of opinion that has been expressed here, if one counts heads, has been in support of the change. I have little doubt that the parliamentarians who are here who have not the elevated status of Lords of Appeal will feel somewhat flattered at the thought that, if what is proposed is carried out, parliamentary debates will hereafter have a new and very special significance.
§ Lord Renton
My Lords, will the noble and learned Lord allow me to intervene? There have been 10 speeches, five in favour of the change and 10 against—I am sorry five in favour and five against.
§ Lord Elwyn-Jones
My Lords, I thank the noble Lord, Lord Renton, for that clarification, if I may so describe it. I was applying my mind to my own prejudice, to some extent, in counting the heads of Lords of Appeal who have, numerically at any rate, taken one view of the matter. As I way saying, though attractive to a mere parliamentarian, I suppose in this concept that parliamentary debates will not only have significance in achieving what is in the Bill and ultimately the Act, but that what is said in the House may he referable thereafter in the highest tribunal in the realm.
I was not absolutely clear in the course of the argument whether this facility will be available to the lower courts—if that is the right way of describing them. The noble Baroness sitting behind me was asking me whether that was to apply to magistrates' courts as well. It could very well arise in the county courts if what is proposed is carried out. We are therefore contemplating a very considerable addition to the burdens placed upon the courts. However, that is not an answer in itself for not taking that road if justice would seem to require it.
It is as well to face up to this matter of history and practice. It has been generally accepted for well over a century now that parliamentary debates are not admissible as an aid to interpreting the statutes. I am bound to say that I myself, in listening to the debate, found quite overwhelming the citations made by the noble and learned Lord, Lord Ackner, from the speeches of Lord Reid, Lords Wilberforce and Diplock, a powerful trinity indeed.
However the rule was expressed that parliamentary debates are not admissible as an aid to interpreting statutes. It was expressed by Lord Reid in Beswick v. Beswick in these terms:For purely practical reasons we do not permit debates in either House to be cited. It would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in Select Committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court".This is one of the matters that has been troubling me—namely, the hope that the nugget of gold, or whatever the term of art is, would somehow be found and would change the whole complexion and approach of a case.
The citation of Lord Reid in Beswick v. Beswick was approved unanimously by your Lordships' House in Davis v. Johnson and in Hadmore 302 Productions Ltd. v. Hamilton and, as I have cited, in Beswick v. Beswick itself. It would have been fascinating to have heard the noble and learned Lord, Lord Denning who, alas, is not with us tonight, adumbrating on this theme. In all those three cases the noble and learned Lord, Lord Denning, as Master of the Rolls, had referred to extracts from Hansard to justify a particular interpretation of the statutes in question. His approach was declared illegitimate in all three of those cases. That position was supported by the Law Commission in its report on the matter. That is a point of considerable significance. They said in their conclusion, following their study of the question:At present, reports of parliamentary proceedings should not be used by the courts for the interpretation of statutes".Of course it may now be said, "Oh well, all these difficulties have been adumbrated. It is not so difficult now that we have got Lexis, God help us! All you have to do is to press buttons and the answer will come via Lexis". That, I suspect, is not going to be as helpful as it may seem at first sight.
However, coming back to the basic principle, the Law Commission has opposed the view that is adumbrated by my noble friend. The Renton Committee's voice has been declared with customary vigour by the noble Lord, Lord Renton, today when he mentioned the committee's reports. A large majority of those who spoke in the debates on the interpretation of the noble and learned Lord, Lord Scarman, of legislation Bills in 1980 and 1981 were not in favour of using the proceedings in Parliament for the purposes of resolving a problem of construction.
The limitation that my noble friend and others have sought to put upon the use of this principle does not seem to me very easy to apply. The language of my noble friend Lord Irvine suggested that only in exceptional circumstances would use be made of what is proposed. But he identifies the area of user for whom resort to Hansard may in some cases lead to an unequivocal resolving of what Parliament meant and intended.
The aspect that troubles me is who is to decide at what moment of time and in what circumstances the reference to Hansard should be made in the hope of finding the nugget of gold? Will there be any obligation on the part of counsel involved to give due notice of this intention beforehand? What will be the practicalities of using this machinery? Is it something that might just spring up in the course of argument and debate? As has been said, the impact upon proceedings could be remarkable. The principal argument that has been used is that the vast majority of magistrates, judges and ordinary citizens should be able to understand the law as it applies to their circumstances.
Ascertaining the answer to this matter by this search through individual cases is a chancy matter. I did not identify a clear principle upon which the departure from the well established principle should be applied. Perhaps when my noble friend comes to speak he may be able to elaborate on that.
The practical difficulties in the way of what has been spelt out are, in my view, very considerable. I 303 take note that, on the face of it, it seems strange that Parliament should be shut out. Incidentally, I have no objection to a discreet peep at it. But to project the matter through the courts seems to me to present practical difficulties of a very considerable character. As I see it, this consideration would arise during the course of proceedings. Would advance notice be required of an intention to raise the matter? What would the procedure be? In some ways it is very unfortunate that there is no body within our constitution to which this difficult issue could be referred. It must be dealt with by your Lordships' House in its judicial capacity. That is the only recourse. The matter, should, of course, not be dismissed by me so lightly. But when such differences exist among noble Lords as have already been adumbrated, I am not sure that we have found the answer in regard to this matter.
I am impressed by the argument that has been used by noble Lords that this practice will encourage sloppiness in drafting. What is essential is that the best endeavours should be made to ensure that the quality of what comes before Parliament, when its proceedings have been completed, is such that it is safe to rely upon the words of a statute itself as an indication of what Parliament intended and meant. Departing from the principle that has been established for over a century that parliamentary debates as such are not admissible seems to me to be a perilous step.
One of the difficulties I see is this. Our legislative procedures are not especially well adapted for the use of parliamentary material as an aid to interpretation. We do not have committee reports of the kind which, as an authoritative summary of the purpose and scope of a legislative proposal, are available to the courts in countries which make use of legislative history. We have no equivalent to that in our parliamentary procedures.
As Lord Reid and the noble Lords who cited him stressed, for practical reasons I do not think the use of reports in either House can be effectively applied. Costs, time and difficulties in practice seem to me to place overwhelming difficulties in the way. That adds to the importance of our own parliamentary machinery in ensuring that, when Bills leave Parliament before receiving Royal Assent, all the necessary devices and means have been used to achieve the best possible conclusion in the matter of understanding and certainty.
There is also an unease in my mind—this was expressed by one noble Lord as perhaps extending excessively the power and role of the Executive—that time and again we were told that we must look to what the Minister said, what his intention was and how it was declared. I am not sure that I find that a wholly admirable solution to the problem although at the end of the day that is the crucial response. Very often these matters arise from amendments that are tabled in the course of debate.
The conclusion that I have attempted to come to, while indicating a willingness to look again at this difficult problem, is that, as yet at any rate, the case 304 for this radical change in a general sense has not been made out.
§ 7.49 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I wish to begin by thanking the noble Lord, Lord Irvine of Lairg, for raising this matter and for doing so in a very thought-provoking way. It also gives me particular pleasure to take part in this debate, having regard to the fact that my noble and learned friend Lord Goff of Chieveley decided to make his maiden speech on this occasion. In the hope that it would solve the problem, my noble friend referred to the proper mixture of Scottish prudence and English common sense. I feel certain that that mixture in my noble and learned friend's ancestry produces the wisdom what we have heard. I hasten to add, however, that wise as his speech was, I do not feel constrained to agree with him.
I think that there is no doubt that the rule has been established for a very long time, and has been evidenced by authorities which have already been quoted (and to which I shall not again refer) that it is not permissible in a court to seek to resolve ambiguity in legislation by reference to debates in Parliament. There is an element of value in certainty in the law; and to disturb a settled rule, unless one does so within very clearly defined circumstances, is apt to be productive of considerable question and debate.
I think that the rule has its origins in decisions of the court. The noble Lord, Lord Lloyd of Hampstead, referred to a decision of 1869. There is also the impact of that rule on Article 9 of the Bill of Rights. That may be the point to which the noble and learned Lord, Lord Scarman, referred. That provision requires that parliamentary proceedings may not he impeached or questioned outside Parliament.
If some totally unambiguous phrase is found and no contradictory report is found in a report in Parliament, that might be acceptable. However, one can well understand the argument being raised as to whether what the Minister said is correctly reflected in the Act of Parliament. To question whether what the Minister or an Opposition spokesman said is a proper explanation of what is ultimately included in the Bill is to some extent to question proceedings in Parliament. I suspect that that is what the noble and learned Lord, Lord Scarman, had in mind. It is certainly a provision which is sometimes referred to, although that very experienced parliamentarian Lord Reid referred to the rule as being based on practical considerations.
I feel that all noble Lords who have spoken are agreed that there would be no need for reference to debates in Parliament unless there were some ambiguity in the statute or the statutory instrument under discussion. Accordingly, surely the fundamental matter that comes out of the debate, on which we are agreed, is that those of us who take part in the process of legislation should do what we can to make sure that the language we use is clear and unambiguous. If devices such as a purpose clause or a preamble, or any other drafting device, in particular cases can make that clear, then such devices should be considered.
305 The question arises as to whether if, notwithstanding the best efforts of Parliament, an ambiguity is discovered in what Parliament has produced it is right to refer to the debates in Parliament which preceded the enactment.
My noble and learned friend Lord Goff of Chieveley referred to the yards of statutes and the miles of Hansard which might be put on a database in Houston. It seems odd that if one is seeking to resolve ambiguities in a particular piece of legislation one opens up the possibility of ambiguities in even more extensive literature. I venture to suggest that the number of ambiguities that one might find in debates both in this House and the other place exceeds even the number of ambiguities one might find in the Acts of Parliament themselves.
I believe that the practical considerations which have been referred to by a number of your Lordships, and in particular by the noble and learned Lord, Lord Donaldson of Lymington, the noble Viscount, Lord Bledisloe, the noble and learned Lords, Lord Elwyn-Jones and Lord Ackner, and the noble Lord, Lord Renton, are all very important considerations. It is also important that the two Law Commissions and the committee of the noble Lord, Lord Renton, having heard a great deal of evidence on the matter, concluded that the rule should remain.
I read somewhere of a judge in the 13th century (I think it was) who heard counsel glossing a particular piece of the statute. He told him not to do that because:We understand it better than you do for we made it".That is a solution which is perhaps available to the Law Lords but not to any other court.
I believe that it is important for the law to be respected and that the methods by which it is construed should be the same at all levels in the court as well as in the practical affairs of life. I think that the ordinary person having recourse to an Act of Parliament would be surprised to be told that in order to be sure that he had the full and correct meaning of the Act he should not only look at the Act of Parliament itself, which might be formidable enough, but also at all the proceedings that had taken place in Parliament. There might not be any ambiguity but the chance of ambiguity is sufficiently high to make that a possibility.
It is said that when one construes something one must construe it in the context of the document as a whole. Therefore the rule would seem to imply that if one is to have recourse to Hansard at all one must have recourse to all the debates on the progress of the Bill. We all know that Bills may change and amendments may be made which would affect statements which were made about the meaning of the Bill at an earlier stage.
I understood the noble Lord, Lord Irvine of Lairg, in introducing the matter, to make reference to exceptional circumstances. I think that the exceptional circumstances to which he referred were the cases in which a short passage in Hansard nailed the point and clarified it. I believe that the difficulty there is the one that has been referred to more than once; namely, that one needs to know in advance whether it will be worth referring to Hansard. 306 Therefore if there is to be an exception I believe that it has to be exception by reference to some circumstance which is determined before one begins to look at Hansard.
One of the possible examples—and I refer to this point because it was decided by this House in its judicial capacity—is the case of Pickstone, to which my noble and learned friend Lord Templeman referred, and to which decision he was party. He also referred to a passage in the speech in that case of my noble and learned friend Lord Keith of Kinkel. That case concerned a situation in which a statutory instrument had been laid before Parliament and explained in a single debate. It was not an instrument that could be amended. Therefore there was not the difficulty which would apply in the ordinary case of possible amendments affecting even an authoritative statement of meaning given at an earlier stage in the passage of a Bill.
It may be that there are such circumstances, determined outside the examination of Hansard by the nature of the legislation in question, that would constitute good grounds for an exception. However, I believe that if exceptions are to be made to the rule there is a very considerable risk of upsetting what is a certain rule and creating uncertainty.
My noble and learned friend Lord Donaldson of Lymington referred to the example in the judgments Acts of reference to reports in relation to the European Convention on Jurisdiction and Enforcement of Judgments. That is an indication of Parliament itself making available clearly-defined material as an aid to construction because the European Court of Justice also does that If we were to have consistency in these matters that would be necessary.
My conclusion is that the practical reasons to which Lord Reid referred are still good reasons for the general rule. I do not say that it is impossible to have any exception to that general rule and certainly I should not like to say that that was the present state of the law having regard to the decision of this House in its judicial capacity. However, I believe that the rule having been stated, and stated with great generality, any exceptions to be made to it would need to be very clearly justified and very clearly specified and defined.
The rule has stood for a long time. We have not had a debate about this matter for some while and I believe that it is extremely valuable for us to have had one this evening. For my part I should like to thank all those who have taken part in this debate for the very interesting discussion that we have had on this topic.
§ Lord Elwyn-Jones
My Lords, before the noble and learned Lord sits down, perhaps I may be permitted to join with him in the compliments that he has paid to the noble and learned Lord, Lord Goff, on his maiden speech. I intended to make the reference myself. I make it belatedly but, I hope, not too much out of order.
§ The Lord Chancellor
My Lords, in view of that remark, it might perhaps be worth mentioning that reference has been made more than once this evening 307 to the noble and learned Lord, Lord Denning. I believe I am right in saying that, all being well, he celebrates his 90th birthday on Monday next. It might be appropriate in a debate of this kind that that event should be noted.
§ 8.1 p.m.
§ Lord Irvine of Lairg
My Lords, I am grateful to the noble Lords and noble and learned Lords who have taken part in this debate. It has certainly shown that the subject extends beyond mere lawyers' law and is of general importance and interest. I am sure that the debate will be widely read elsewhere.
I was happy to hear the noble and learned Lords, Lord Goff of Chieveley, Lord Griffiths and Lord Templeman, give what appeared to me to be a fair wind to my limited suggestion and 1 think it blew even a little stronger and perhaps in a somewhat ampler direction than I was bold enough to travel myself.
The principal criticism of the limited suggestion that was made was that it would be impossible for a judge to tell in advance whether Hansard would be determinative until there was full argument about it in every case, and therefore the limitation that was suggested would be no limitation in practice. In the course of his speech the noble and learned Lord, Lord Templeman, gave the answer to that point. The noble and learned Lord, Lord Donaldson of Lymington, associated himself with that criticism but of course he himself is the author of expeditious written procedures which have proved most beneficial in practice.
A procedure could easily be devised—and perhaps the noble and learned Lord himself is best suited to devise it—for submitting in advance a written summary of why it is said that Hansard is determinative of a particular point of ambiguity. The relevant pages of Hansard could be attached and the judge could easily rule in advance whether Hansard was so clear as to be capable of being determinative on the point. Then and only then could there be full argument. With regard to the contribution of the noble Viscount, Lord Bledisloe, I have to say that it is not my experience that judges are as supine in the face of inadmissible argument as he appears to have found.
The last word allows me, I think, to declare a majority for change among noble and learned Lords and a majority among all contributors to the debate—that is, if I am to disqualify from the count my noble and learned friend Lord Elwyn-Jones, who is a former Lord Chancellor, and the noble and learned Lord the Lord Chancellor himself because of the constitutional ambiguity inherent in that office. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.