THE SUPREME COURT CONSIDERS THE CONSTRUCTION OF STATUTES AND PRE-LEGISLATIVE MATERIAL

In  O (a minor), R (on the application of v Secretary of State for the Home Department [2022] UKSC 3 the Supreme Court considered the issue of statutory interpretation and the use of external material, in particular official material.  There is an interesting discussion about this issue, particularly in the judgment of Lady Arden.

” I would emphasise that in statutory interpretation the function of the court is to obtain the meaning of the words in the statute that it is required to interpret. The ultimate purpose of interpretation is always to find the meaning of those words. I consider that recourse to pre-legislative material can in appropriate circumstances considerably help the judge better to perform his or her role of finding the intention of Parliament in any particular enactment.”

The appellant brought an action seeking a declaration that the rates set by the government for a child to be registered as a British Citizen were unaffordable and that the subordinate legislation it was based on was ultra vires.

The appeal was unsuccessful. The decision involved the court considering the process of statutory interpretation, in particular the use of Parliamentary material.

LORD HODGE

There was effectively one judgment given by Lord Hodge.

“The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”:

1. 1. Having regard to the way in which both parties presented their cases, it is opportune to say something about the process of statutory interpretation.

   2. The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid of Drem. More recently, Lord Nicholls of Birkenhead stated:

“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”

(R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397:

“Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”

1. 1. External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.

   2. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated:

“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

LADY ARDEN

Lady Arden deals with the question of the use of pre-existing legislative material in more detail.

1. 1. I agree with Lord Hodge, and take this opportunity to address one point, namely the wide role in statutory interpretation for pre-legislative material, that is relevant material created before a Bill is passed (other than the Bill itself). Lord Hodge refers to this in paras 30 and 31 of his judgment.

   2. I entirely agree with Lord Hodge that the task of the court when interpreting legislation is to find the meaning of the words that Parliament has used. This can be achieved by using the techniques which the courts have developed for this purpose. It is not for judges to impose their own view as to that meaning. They must find the meaning that they consider Parliament intended. Lord Nicholls of Birkenhead explains what this involves in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349:

“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: ‘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.’” (pp 396 to 397)

1. 1. Lord Hodge prefaces paras 30 and 31 of his judgment by recalling in para 29 the observations of Lord Nicholls in Spath Holme at p 397 about what I will call “the legal certainty issue”. One of the problems in the court using pre-legislative material, Lord Nicholls explained, is that it makes it more difficult for a citizen to know what a statute means if the court has been influenced by external material and it is not readily available. This reason no longer applies to explanatory notes accompanying Acts of Parliament or explanatory notes appended to statutory instruments. These are often published by commercial publishers alongside the Act or statutory instrument. They are in any event available online without charge at https://www.legislation.gov.uk which is the official, web-accessible database of UK statute law. It is managed by The National Archives on behalf of the UK government. The database was not operational when the House of Lords decided Spath Holme. Explanatory notes were introduced following the Second Report of the Select Committee on Modernisation of the House of Commons (HC 389, 1997-98), which annexes a useful paper by the First Parliamentary Counsel, Christopher Jenkins CB, QC, explaining the reasons for proposing the introduction of explanatory notes. The report of the Select Committee on Modernisation expressly recognised that the courts might wish to use explanatory notes as a guide to Parliament’s intentions in passing a particular piece of legislation (para 37).

   2. The concern of Lord Nicholls was also, as I read his judgment, on account of the constitutional implications, to which I refer further below.

   3. The legal certainty issue leads Lord Hodge to the view that explanatory material must play a secondary role in interpretation. He puts explanatory notes prepared under the authority of an Act of Parliament into a different category from Law Commission reports, reports of Royal Commissions and advisory committees and Government White Papers. He states that the former may cast light on the meaning of a particular statutory provision whereas the latter disclose the background and help the court to identify both the mischief which the legislation addresses and its purpose, thereby assisting a purposive interpretation of a particular statutory provision.

   4. I agree with Lord Hodge that such material is relevant to assist the court to ascertain the meaning of the statute, whether there is or is not ambiguity or uncertainty, and indeed may reveal ambiguity or uncertainty.

   5. The next sentence in para 30 of Lord Hodge’s judgment reads:

“But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.”

I would put it this way. There are occasions when pre-legislative material may, depending on the circumstances, go further than simply provide the background or context for the statutory provision in question. It may influence its meaning. This is borne out by Spath Holme, where Lord Nicholls held:

“Nowadays the courts look at external aids for more than merely identifying the mischief the statute is intended to cure. In adopting a purposive approach to the interpretation of statutory language, courts seek to identify and give effect to the purpose of the legislation. To the extent that extraneous material assists in identifying the purpose of the legislation, it is a useful tool.” (p 397)

1. 1. While external material is likely to contribute to the court’s knowledge of the context of and background to the statute to be interpreted and its appreciation of its purpose, matters do not always stop there. In some but not all cases, its use may go further. This is exemplified by contrasting two situations, first, the situation where the external material deals with proposals which did not find their way into the statute. This material may provide information of value about the context of and background to the legislation but is not likely to be of further use. The second example I have in mind is where perusal of the external material reveals that the language of the statute – perhaps initially thought to be clear on its face so as not to need any further inquiry – is in fact ambiguous. Here the external material has a use which goes beyond the provision of background and context.

   2. Lord Nicholls immediately entered a caveat about the constitutional implications of statutory interpretation. He held that in view of the constitutional implications of statutory interpretation the courts should be slow to allow external aids to be used for meanings which were otherwise clear and unambiguous and not productive of uncertainty. But Lord Nicholls did not say that the pre-legislative material could never displace the apparent meaning of a provision. While I do not doubt the presence of constitutional implications – statutory interpretation is bound to engage the courts’ relationship with Parliament – it is difficult to see that there are adverse implications from the courts aiming to find a better-informed interpretation of a provision by reference to pre-legislative material which Parliament is more likely than not to have acted on. The process is quite different from finding a meaning which is not justified by the words that Parliament has used, or which is selected for some reason other than the presumed intention of Parliament. Neither of those approaches is in accordance with the principles of statutory interpretation.

   3. That pre-legislative material may also influence the meaning which the court determines is the true meaning of the provision in question is also borne out by the judgment of Lord Diplock in Fothergill v Monarch Airlines Ltd [1981] AC 251. Lord Diplock held:

“Where the Act has been preceded by a report of some official commission or committee that has been laid before Parliament and the legislation is introduced in consequence of that report, the report itself may be looked at by the court for the limited purpose of identifying the ‘mischief’ that the Act was intended to remedy, and for such assistance as is derivable from this knowledge in giving the right purposive construction to the Act.” (Emphasis added, p 281)

1. 1. Indeed, the legal certainty issue would not give rise to concern unless the external material could influence the result.

   2. Like Lord Hodge, I would emphasise that in statutory interpretation the function of the court is to obtain the meaning of the words in the statute that it is required to interpret. The ultimate purpose of interpretation is always to find the meaning of those words. I consider that recourse to pre-legislative material can in appropriate circumstances considerably help the judge better to perform his or her role of finding the intention of Parliament in any particular enactment. (I explained this in my recent Lord Renton lecture to the Statute Law Society “What makes good statute law: a judge’s view?” (Statute Law Review, Volume 43, Issue 2, June 2022)). It follows that I would bear in mind the model of “the informed judge” which Viscount Simonds describes as applying to himself in Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, 460-461:

“My Lords, the contention of the Attorney General was, in the first place, met by the bald general proposition that where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the preamble, and a large part of the time which the hearing of this case occupied was spent in discussing authorities which were said to support that proposition. I wish at the outset to express my dissent from it, if it means that I cannot obtain assistance from the preamble in ascertaining the meaning of the relevant enacting part. For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.”

1. Viscount Simonds does not specifically mention Law Commission reports (the Law Commissions had not then been established). Nor does he mention White Papers or other documents, but the material to which he referred included external material. So, what Viscount Simonds says about obtaining “the colour and content” of a statute from its context must apply equally to pre-legislative material of this nature as well.

2. I have referred only to material of an official nature, as it seems to me that material emanating from a purely private source will not in general be capable of being used to interpret an enactment. An enactment is, after all, about regulating the activities of members of society.

3. Pre-legislative materials can perform an even more helpful role in the 21st century than when Viscount Simonds was writing because of the increasing complexity and quantity of statute law. To obtain the meaning most likely to have been that intended by Parliament is a multi-dimensional exercise and, as I see it, the judge should draw on all the material which is properly available to him or her. Of course, he or she must consider the material with a critical eye so as to be sure that it really does help in interpreting the enactment.

4. It is necessary to bear in mind that the pre-legislative material is unlikely to provide the exact answer to what the words mean but a judge may, for instance, find out what view was taken about the existing legal situation at the time of the Bill, in which case this is another factor which may have to be considered. Even though the consideration of Parliamentary material does not yield the exact answer, it will have the beneficial effect of making the court better informed about the practical implications of the law in question, and generally the context and the objective of the legislation.

5. I do not include Hansard in these observations as there are special rules restricting the use that may be made of Hansard as an aid to interpretation. Nor do I exclude the possibility that explanatory notes to legislation carry greater weight than pre-legislative materials of the kind described above.

6. Craies on Legislation, 12th ed (2020), chapter 27 states that courts are increasingly prepared to look at any material that is likely to be genuinely helpful in illuminating the context in which legislation is to be construed but that they still start from the assumption that it is important that background material should not be allowed to take precedence over the clear meaning of the words used (para 27.1.1.2).

7. In my judgment it is realistic also to recognise that pre-legislative material, where available, may inform the court about an ambiguity which was not apparent simply on the face of the words, the mischief to which the legislation was directed and the purpose of the provision, and may in an appropriate case influence the meaning of the statutory provision. The use of pre-legislative material in an appropriate case in one of these ways, mindful always that statutory interpretation must be consistent with the courts’ relationship with Parliament, is an integral part of modern statutory interpretation. Moreover, the use of pre-legislative material in the ways I have described supports and strengthens the task of giving the correct meaning to the words that Parliament has used.

8. With these observations, I agree with Lord Hodge.