Pepper v Hart
Encyclopedia
Pepper v Hart [1992] UKHL 3
, is a landmark decision of the House of Lords
on the use of legislative history
in statutory interpretation
. The court
established the principle that when primary legislation
is ambiguous then, under certain circumstances, the court may refer to statements made in the House of Commons
or House of Lords
in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege
.
Hart and nine others were teachers at Malvern College
who benefited from a "concessionary fee" scheme that allowed their children to be educated at the College for one-fifth of the normal fees of a pupil. The Inland Revenue
attempted to tax this benefit based on the Finance Act 1976. There was a dispute over exactly what the Act meant, which could be resolved with the use of Hansard
, something not allowed at the time. The Special Commissioners charged with assessing the tax found in favour of Hart, however both the High Court of Justice
and Court of Appeal of England and Wales
found in favour of the Inland Revenue. The case then went to the House of Lords, which found in favour of Hart and allowed the use of Hansard. Lord Mackay, dissenting, argued that Hansard should not be considered admissible evidence due to the time and expense involved in a lawyer having to look up every debate and discussion on a particular statute when giving legal advice or preparing a case.
The decision met a mixed reception. While the judiciary were cautiously accepting, legal academics argued that it violated rules of evidence, damaged the separation of powers
between the executive and Parliament and caused additional expense in cases. The decision was subjected to an assault by Lord Steyn in his Hart Lecture, delivered on 16 May 2000 and titled "Pepper v Hart: A Re-examination", in which he disputed exactly what the House of Lords had meant by their decision and also attacked the logic and legal theory behind it. Since Steyn's lecture, there have been several judicial decisions which limited the use of Pepper by the courts; the result of these changes, according to Stefan Vogenauer
, is that "the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless".
, where from 1983 to 1986 they took advantage of a "concessionary fee" scheme, which allowed their children to be educated at rates one-fifth of those paid by other pupils. They disputed the amount of tax they had to pay under the 1976 Finance Act
, Section 63 of which said that: The Inland Revenue
, attempting to tax this benefit, argued that the "cost" of the benefit meant an average of the cost
of providing it; if there were 100 pupils at a school that cost £1,000,000 a year to run, the "cost" per pupil was £10,000. Hart and his fellow teachers disputed this and argued that it was instead marginal cost
, saying that other than food, stationery, laundry and similar there was no cost to the school due to the children's presence that would not be there already. The Special Commissioners (an appellate body for income tax claims), ruling in favour of Hart, noted that not only was the school not full to capacity, with the teachers' children having no impact on waiting lists, but that the "concessionary fee" covered all costs incurred by the school to educate those particular pupils. It was found, however, that while passing the Finance Act, ministers had made statements in the House of Commons which supported the idea that such "benefits" should be excluded from tax.
's Chancery Division, where it was heard by Vinelott J
. In his judgment (issued 24 November 1989), Vinelott decided, based on the act, that "any expense incurred" referred to the average cost of keeping pupils, not the costs of keeping the teachers' children as pupils, reversing the Special Commissioners' decision. The case was then heard by the Court of Appeal
, which issued its judgment on 13 November 1990. The three judges confirmed Vinelott's decision, ignoring the Hansard element of the case and confirming that, based on the Act's text, "any expense incurred" referred to the average cost.
. They initially agreed with the Court of Appeal by a 4–1 majority. At the end of the preliminary hearing, the judges became aware that, during the Finance Act's committee stage, Financial Secretary to the Treasury
Robert Sheldon
remarked (in response to a question about places for the children of teachers at fee-paying schools) "The removal of clause 54(4) will affect the position of a child of one of the teachers at the child's school because now the benefit will be assessed on the cost to the employer, which would be very small indeed in this case", implying that the "expense" is meant to be the cost to the school, not the average cost of having a pupil there. As a result of this discovery, the House of Lords chose to reconvene as a 7-judge panel, consisting of Lord Mackay, Lord Keith
, Lord Bridge
, Lord Griffiths
, Lord Ackner
, Lord Oliver
and Lord Browne-Wilkinson.
The court reconvened and issued its judgment on 26 November 1992, read by Browne-Wilkinson. Browne-Wilkinson found in favour of Hart, and on the subject of Hansard wrote that:
In prior cases, the fear had been expressed that using parliamentary debates as evidence in court could violate parliamentary privilege
, under Article 9 of the Bill of Rights 1688 (since using parliamentary debates as evidence would involve discussing what went on in Parliament within the courts). Browne-Wilkinson held that:
Agreeing with Browne-Wilkinson, Lord Griffiths also wrote, in regards to legislative interpretation, that:
Mackay, in his dissenting judgment, came to the same conclusion as the rest of the House on the interpretation of the Finance Act, but without the use of Hansard. Although he agreed that such a use would not violate Article 9, he argued that it was not appropriate:
For several judges, the use of Sheldon's statement in Parliament was a deciding factor. In the initial hearing, Lords Bridge, Browne-Wilkinson and Oliver were all in favour of dismissing Hart's case, later changing their mind with the new evidence available to them. Lord Griffiths, on the other hand, was not swayed by the use of Sheldon's statement; he wrote that " I should myself have construed the section in favour of the taxpayer without recourse to Hansard".
Before Pepper, it was impossible to use Parliamentary discussions as evidence in court cases; William Blackstone
wrote in the 18th century that to allow judicial review of "unreasonable" legislation was to "set the judicial power above that of the legislature, which would be subversive of all government". Historically, the courts had been more lenient; while this suggestion first appears in the 14th century, with the intention that legislation was best interpreted by those who had written it, the principle was not strongly followed. In the 1678 case of Ash v Abdy,[1678] 3 Swan 644 Lord Nottingham
chose to refer to the parliamentary history of the Statute of Frauds
, and in Millar v Taylor,[1769] 4 Burr 2303 in 1769, the first case to explicitly state this principle (as "The sense and meaning of an Act of Parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the House where it took its rise"), the court chose to depart from it. The principle was most used during the 19th and 20th centuries, with a noted example being Beswick v Beswick,[1968] AC 58 where Lord Reid
maintained that it would be inconvenient and expensive for lawyers to have to refer to Hansard
when preparing cases. Both the English
and Scottish Law Commission
s agreed with the rule in their 1969 Report on the Interpretation of Statutes.
During the late 20th century there was a gradual "retreat" from this rule; in Sagnata Investments Ltd v Norwich Corporation,[1971] 2 QB 614 the courts allowed Hansard material to be submitted to determine the purpose of legislation (but not to interpret the statute), and in Pickstone v Freemans plc,[1989] AC 66 it was allowed to assist in the understanding of delegated legislation. A noted attack on the rule was made by Lord Denning in Davis v Johnson,[1979] AC 264 where he said that asserting that the courts could not use Hansard was similar to saying that the judges "should grope about in the dark for the meaning of an Act without switching on the light. In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings." Despite these exceptions, the courts regularly maintained that it was not possible to use internal Parliamentary discussions as an aid to legislative interpretation. The result of Pepper was a reversal of that rule; a court could use internal Parliamentary discussions where it was relevant to "the very point in question in the litigation", where a piece of legislation is "ambiguous or obscure, or the literal meaning of which leads to an absurdity", with the intention being to understand "the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words".
The decision in Pepper has been linked to a positive move in statutory interpretation that had been proceeding since the end of the Second World War. Previously, the dominant approach was that of the literal rule, supplemented by the golden
and mischief rule
s (that interpretations should not be made if they were to lead to absurdity, and that interpretations should take into account the intention behind the statute). These approaches all limited the amount of material which could be used by a judge when interpreting the actions of Parliament. Following the 1969 Law Commission
report The Interpretation of Statutes, British courts began to use a more purposive approach
, which directed that when interpreting a statute they should examine the purpose behind it, rather than simply using the text of the statute itself. In effect, this widened the amount of material judges could use, including not only the statute but reports made by government bodies, the Law Commission and Royal Commission
s. The impact of Pepper was to include Hansard
in this list of acceptable material, not only to establish the overall purpose of an act but to define what was meant by a particular provision.
jurisdictions, interpretation for similar situations is significantly different. In Canada
, for example, four different interpretative doctrines are used in understanding taxation laws; "strict construction, purposive interpretation, the plain meaning rule, and the words-in-total-context approach". In Stubart Investments Limited v The Queen,[1984] 1 SCR 536 the Supreme Court of Canada
decided to reject a strict approach and instead use the rule that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". Since then, however, both the purposive
and plain meaning
approaches have been used. Academics have rejected the idea that legislative history should be an aid to statutory interpretation, arguing that "[i]t would introduce intolerable uncertainty ... if clear language in a detailed provision of [an] Act were to be qualified by unexpressed exceptions derived from a court’s view of the object and purpose
of the provision", and that it violates the rule of law, which requires that laws be performable. The average citizen does not have access to the legislative history of an Act, which under the Pepper approach could very well change the meaning of the statute completely.
United States
courts regularly use such interpretation, partially because there are significant differences between the British and American legislative systems. In the United States, legislation is regularly subject to negotiation and altered after being introduced to Congress, and so it is in the courts' interest to look at the particular Act's history when interpreting it. The range of sources accepted is "richer and more diverse", with individual Senators and Representatives and members of the Executive called to give evidence all valid. In the Supreme Court of the United States
, 145 decisions (approximately 20% of the decisions given) between 1996 and 2005 reference legislative history. In the House of Lords and Supreme Court of the United Kingdom
, only 9.8% of decisions use legislative history as a tool. It is noted, however, that the House of Lords and Supreme Court rely on statutes less often than the United States equivalent. Michael Healy, writing in the Stanford Journal of International Law, notes that the use of statutory interpretation in the US Supreme Court combined with the uncertainty over what approach the court will take means lawyers have to write extremely broad arguments, increasing the cost of litigation — a concern raised in Pepper.
, has expressed some approval at the decision. Firstly, he claims that it will significantly change the way legislation is drafted. Prior to Pepper, draftsmanship was a "time consuming" and "frustrating rather than enlightening" business. There are risks of "excessive detail, over-elaboration, verbosity, prolixity, iteration, tedious repetition", and so a draftsman avoids directly dealing with every single problem, instead following the rule set out by the Renton Committee to ensure that "sufficient certainty is obtained for a fair-minded and reasonable reader to be in no doubt what is intended, it being assumed that no one would take entirely perverse points against the draft, or that such points would be brushed aside by the court". The draftsman may be in conflict with a government official who wishes to be overly specific, where this general rule renders their concerns moot; in such situations, the ability to include a passage of a Minister's speech as a way to ensure that the courts will interpret legislation in a specific way may clear up any doubts they feel. As such, Jenkins feels that Pepper may make the jobs of parliamentary draftsmen much easier. Although one academic called Pepper a "long overdue" decision from "which there is no turning back", the overall reaction was a negative one. The decision can be interpreted as promoting legislative supremacy, a key point in a system where parliamentary sovereignty
is confirmed.
on Parliamentary Privilege, which recommended that Parliament not counter the decision in Pepper v Hart, but cautioned that this should not lead to any further weakening of parliamentary privilege. However, academics widely condemned the decision and the thinking behind it. Academic Aileen Kavanagh questioned the logic used; the House of Lords was essentially saying that, where a minister has made a statement about an act's intent that was not questioned by Parliament, that statement can be used as evidence. However, there are many reasons why Members of Parliament might not question a statement, and this does not necessarily indicate that they approve of it; in the case of the Finance Act
, for example, it could simply be that as the statement was not going to be added to the statute, they found no reason to actively oppose it. At the same time, different Members of Parliament may approve of a statutory provision for different reasons. The fact that a minister gives certain reasons for including a provision does not necessarily indicate that Parliament agrees; only that Parliament also feels, for whatever reason, that the provision should be included. The decision also raises questions about the separation of powers
in the United Kingdom; it has been consistently maintained that it is Parliament, not the executive, which passes legislation. If one accepts that statements by the executive can allow them to specify the meaning of particular laws without formally including them in statutes where they can be approved by Parliament, it violates this separation of powers, allowing the executive to make law.
With these issues, Kavanagh argues that there are likely to be consequences. Firstly, if judges replace the text of a statute with the meaning given to it by a single minister in Parliament, there is a risk that they will attribute a meaning to it which was not supported by the MPs; interpretations, based on the views of ministers, are more likely to reflect the executive's intention than that of Parliament. Kavanagh also suggests that it could impact on the actions of ministers; rather than attempting to specify law through the difficult route of placing it in legislation, they can simply make a statement within Parliament about the legislation's intent. Lord Mackay's worry that this would increase the cost of litigation was also considered; under Pepper, every lawyer must go through every word said in both Houses of Parliament and in the various committees to ensure that they are giving the best advice to their client. Academics have also expressed worry about the reliability of Hansard as a source; "the debate on the Bill is a battle of wits often carried out under extreme pressure and excitement where much more than the passage of this Bill may be at stake. The Ministers supporting it cannot be expected to act as if they were under oath in a court of law".
The decision also contradicted previous precedent as to the nature of evidence. John Baker
notes that it violates strong rules which exclude the use of written evidence to interpret a document, unless the evidence was found in said document. Baker also argued that ministerial statements should not be used as evidence because they are irrelevant; "no individual member of Parliament is in a position to state what that intention is or to speak for the silent majority. Parliament acts as a corporate body and the only expression of its common intention is the text to which the Queen and both Houses have given their unqualified assent. What passes in one House is not formally known to the other". An individual MP's statements, minister or not, may be based on a false understanding of the legal issues; MPs regularly vote for proposals having disagreed with the statements of the spokesman simply because they like the proposal itself.
J. C. Jenkins, who interprets Pepper as making the jobs of parliamentary draftsmen much easier in some ways, also foresees it as making the job more difficult. Because of the added resources courts can draw on, there is now increased pressure to produce statutes which will not be interpreted in the wrong way. Departments sponsoring legislation normally prepare briefings for their ministers when talking in Parliament; draftsmen may now be expected to vet these, a time-consuming process. The draftsmen may also have to look at material produced by these departments other than the statutes, as it may be discussed in court; in Pepper, Lord Browne-Wilkinson considered a press release produced by the Inland Revenue. The decision also changes parliamentary practice. Under previous practice, if a minister was asked a question publicly and could not immediately reply with an answer, or publicly made a statement that later turned out to be incorrect, he would privately write a letter explaining or correcting himself. As a result of Pepper, such private replies may have to be made publicly. In addition, Members of Parliament are more aware that their statements, and those statements they induct Ministers to make, may be looked at by the courts. As a result, these statements and inducements may be structured differently, and MPs may be more concerned that their issues be dealt with "at length and on the record", making parliamentary proceedings "more formal, more cluttered, and more protracted".
' intent in regards to the use of Hansard
in court, sparked by Lord Steyn
's Hart Lecture on 16 May 2000, titled "Pepper v Hart: A Re-examination". Steyn suggested that Pepper v Hart was limited to "an estoppel
argument", and Hansard's use in court should "be confined to the admission against the executive of categorical assurances given by ministers to Parliament"; essentially, that Hansard should only be used if it the purpose is to establish that ministers made certain assurances to Parliament, with the intent being to prevent the executive going back on its promises. Stefan Vogenauer
disagrees that this was the House of Lords' intent in Pepper, pointing out that Hart's counsel had, during proceedings, made an argument along the lines of estoppel — one the Lords had completely ignored when making their decision.
The courts' cautiously optimistic acceptance of Pepper, which included an attempt to include it in the House of Lords' Practice Directions, soon began to wane. Although the lower courts applied the decision and allowed the use of Hansard, and the Lords itself initially followed it in R v Warwickshire County Council, ex parte Johnson,[1993] 1 All ER 299 several objections and limits were expressed in later obiter dicta and ratio decidendi
. The first judicial complaints were voiced in 1997 by Lord Hoffmann
in The Intolerable Wrestle with Words and Meanings, where he criticised the increased expense and drop in efficiency which it created. In a speech to the Chancery Bar Lord Millett
calling the judgment "a regrettable decision" that "was not only misguided in practical terms, it was in my view contrary to principle", saying that: The courts immediately began to "whittle down" the precedent set by Pepper. The first direct attack came through Massey v Boulden,[2003] 2 All ER 87 where the Court of Appeal
held that Hansard could not be used in criminal law cases, since "the principle that penal statutes are to be narrowly construed intervenes to resolve any ambiguity without resort to Hansard".
In Robinson v Secretary of State for Northern Ireland, Lords Hobhouse
, Hoffman and Millett said that Mackay, with his dissenting judgment, had "turned out to be the better prophet", with large amounts of inefficiency and expense associated with Pepper. In the Spath Holme judicial review case,[2001] 2 WLR 15 Lords Bingham, Hope and Hutton held that Hansard could only be used in pursuit of "ascertaining the meaning of a particular word or phrase", rather than simply where a piece of legislation is "ambiguous or obscure, or the literal meaning of which leads to an absurdity". In McDonnell,[2003] UKHL 63 the Lords further limited the use of Hansard, saying it could not be used to overrule precedent set before courts were able to reference it, except in exceptional circumstances. Wilson and others v Secretary of State for Trade and Industry,[2003] UKHL 40 the first case involving Hansard after the Human Rights Act 1998
put further limits on its use; ministerial statements made in Parliament can not be treated as sources of law, only as supporting evidence. This "retreat" from Pepper was resisted in the Court of Appeal, primarily by Lord Phillips, who praised the decision following Steyn's lecture in 2000, but has been repeatedly emphasised in the House of Lords and Supreme Court of the United Kingdom
. As a result of these changes, Stefan Vogenauer
has said that "the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless".
Despite the judicial criticism and limits placed on Pepper, references to Hansard have apparently increased since the beginning of the 21st century. It is also noted that the most recent generation of House of Lords and Supreme Court judges have been willing to regularly reference legislative history in their arguments. In Harding v Wealands,[2006] UKHL 32 for example, three Law Lords were willing to apply Pepper, even Lord Hoffman who had previously voiced concerns. Lord Carswell noted that Pepper had been "out of judicial favour in recent years", but added that legislative history was "perhaps especially [useful] as a confirmatory aid".
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, is a landmark decision of the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
on the use of legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
in statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
. The court
Courts of England and Wales
Her Majesty's Courts of Justice of England and Wales are the civil and criminal courts responsible for the administration of justice in England and Wales; they apply the law of England and Wales and are established under Acts of the Parliament of the United Kingdom.The United Kingdom does not have...
established the principle that when primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
is ambiguous then, under certain circumstances, the court may refer to statements made in the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
or House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
.
Hart and nine others were teachers at Malvern College
Malvern College
Malvern College is a coeducational independent school located on a 250 acre campus near the town centre of Malvern, Worcestershire in England. Founded on 25 January 1865, until 1992, the College was a secondary school for boys aged 13 to 18...
who benefited from a "concessionary fee" scheme that allowed their children to be educated at the College for one-fifth of the normal fees of a pupil. The Inland Revenue
Inland Revenue
The Inland Revenue was, until April 2005, a department of the British Government responsible for the collection of direct taxation, including income tax, national insurance contributions, capital gains tax, inheritance tax, corporation tax, petroleum revenue tax and stamp duty...
attempted to tax this benefit based on the Finance Act 1976. There was a dispute over exactly what the Act meant, which could be resolved with the use of Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
, something not allowed at the time. The Special Commissioners charged with assessing the tax found in favour of Hart, however both the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
and Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
found in favour of the Inland Revenue. The case then went to the House of Lords, which found in favour of Hart and allowed the use of Hansard. Lord Mackay, dissenting, argued that Hansard should not be considered admissible evidence due to the time and expense involved in a lawyer having to look up every debate and discussion on a particular statute when giving legal advice or preparing a case.
The decision met a mixed reception. While the judiciary were cautiously accepting, legal academics argued that it violated rules of evidence, damaged the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
between the executive and Parliament and caused additional expense in cases. The decision was subjected to an assault by Lord Steyn in his Hart Lecture, delivered on 16 May 2000 and titled "Pepper v Hart: A Re-examination", in which he disputed exactly what the House of Lords had meant by their decision and also attacked the logic and legal theory behind it. Since Steyn's lecture, there have been several judicial decisions which limited the use of Pepper by the courts; the result of these changes, according to Stefan Vogenauer
Stefan Vogenauer
-References:...
, is that "the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless".
Facts
Hart and nine others were teachers at Malvern CollegeMalvern College
Malvern College is a coeducational independent school located on a 250 acre campus near the town centre of Malvern, Worcestershire in England. Founded on 25 January 1865, until 1992, the College was a secondary school for boys aged 13 to 18...
, where from 1983 to 1986 they took advantage of a "concessionary fee" scheme, which allowed their children to be educated at rates one-fifth of those paid by other pupils. They disputed the amount of tax they had to pay under the 1976 Finance Act
Finance Act
In the UK, the Chancellor of the Exchequer delivers an annual Budget speech on Budget Day, outlining changes in spending, as well as tax and duty. The changes to tax and duty are passed as law, and each year form the respective Finance Act...
, Section 63 of which said that: The Inland Revenue
Inland Revenue
The Inland Revenue was, until April 2005, a department of the British Government responsible for the collection of direct taxation, including income tax, national insurance contributions, capital gains tax, inheritance tax, corporation tax, petroleum revenue tax and stamp duty...
, attempting to tax this benefit, argued that the "cost" of the benefit meant an average of the cost
Average cost
In economics, average cost or unit cost is equal to total cost divided by the number of goods produced . It is also equal to the sum of average variable costs plus average fixed costs...
of providing it; if there were 100 pupils at a school that cost £1,000,000 a year to run, the "cost" per pupil was £10,000. Hart and his fellow teachers disputed this and argued that it was instead marginal cost
Marginal cost
In economics and finance, marginal cost is the change in total cost that arises when the quantity produced changes by one unit. That is, it is the cost of producing one more unit of a good...
, saying that other than food, stationery, laundry and similar there was no cost to the school due to the children's presence that would not be there already. The Special Commissioners (an appellate body for income tax claims), ruling in favour of Hart, noted that not only was the school not full to capacity, with the teachers' children having no impact on waiting lists, but that the "concessionary fee" covered all costs incurred by the school to educate those particular pupils. It was found, however, that while passing the Finance Act, ministers had made statements in the House of Commons which supported the idea that such "benefits" should be excluded from tax.
High Court and Court of Appeal
Following the report of the Special Commissioners, the case was appealed to the High Court of JusticeHigh Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
's Chancery Division, where it was heard by Vinelott J
John Vinelott
Sir John Evelyn Vincent Vinelott was a leading barrister at the Chancery bar and an English High Court judge in the Chancery Division from 1978 to 1994....
. In his judgment (issued 24 November 1989), Vinelott decided, based on the act, that "any expense incurred" referred to the average cost of keeping pupils, not the costs of keeping the teachers' children as pupils, reversing the Special Commissioners' decision. The case was then heard by the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, which issued its judgment on 13 November 1990. The three judges confirmed Vinelott's decision, ignoring the Hansard element of the case and confirming that, based on the Act's text, "any expense incurred" referred to the average cost.
House of Lords
Again appealed, the case came before a 5-judge panel of the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
. They initially agreed with the Court of Appeal by a 4–1 majority. At the end of the preliminary hearing, the judges became aware that, during the Finance Act's committee stage, Financial Secretary to the Treasury
Financial Secretary to the Treasury
Financial Secretary to the Treasury is a junior Ministerial post in the British Treasury. It is the 4th most significant Ministerial role within the Treasury after the Chancellor of the Exchequer, the Chief Secretary to the Treasury, and the Paymaster General...
Robert Sheldon
Robert Sheldon, Baron Sheldon
Robert Edward Sheldon, Baron Sheldon, PC is a Labour politician.Sheldon was educated at Burnley Grammar School, technical colleges and the University of London...
remarked (in response to a question about places for the children of teachers at fee-paying schools) "The removal of clause 54(4) will affect the position of a child of one of the teachers at the child's school because now the benefit will be assessed on the cost to the employer, which would be very small indeed in this case", implying that the "expense" is meant to be the cost to the school, not the average cost of having a pupil there. As a result of this discovery, the House of Lords chose to reconvene as a 7-judge panel, consisting of Lord Mackay, Lord Keith
Henry Keith, Baron Keith of Kinkel
Henry Shanks Keith, Baron Keith of Kinkel GBE, PC, QC was a Scottish judge.He was educated in the Edinburgh Academy, at the Magdalen College, Oxford, where he graduated with a Master of Arts and the University of Edinburgh, where he graduated with a Bachelor of Law...
, Lord Bridge
Nigel Bridge, Baron Bridge of Harwich
Nigel Cyprian Bridge, Baron Bridge of Harwich PC was a British barrister and judge. Bridge was the presiding judge at the trial of the Birmingham six in 1975, the verdict of which was quashed by the Court of Appeal in 1991, and he later served as a Law Lord.-Early and private life:Bridge's father...
, Lord Griffiths
Hugh Griffiths, Baron Griffiths
William Hugh Griffiths, Baron Griffiths, known as Hugh Griffiths, PC, QC, MC is a British judge and barrister....
, Lord Ackner
Desmond Ackner, Baron Ackner
Desmond James Conrad Ackner, Baron Ackner, PC, QC was a British judge and Lord of Appeal in Ordinary.-Early life:...
, Lord Oliver
Peter Oliver, Baron Oliver of Aylmerton
Peter Raymond Oliver, Baron Oliver of Aylmerton PC, QC was a British judge and barrister.Oliver was born in Cambridge, where his father, David Thomas Oliver, was a professor of law and Fellow of Trinity Hall, Cambridge. He was educated at The Leys School, Cambridge and Trinity Hall, Cambridge,...
and Lord Browne-Wilkinson.
The court reconvened and issued its judgment on 26 November 1992, read by Browne-Wilkinson. Browne-Wilkinson found in favour of Hart, and on the subject of Hansard wrote that:
My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule [that Hansard may not be used] unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House
of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.
In prior cases, the fear had been expressed that using parliamentary debates as evidence in court could violate parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
, under Article 9 of the Bill of Rights 1688 (since using parliamentary debates as evidence would involve discussing what went on in Parliament within the courts). Browne-Wilkinson held that:
In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there.
Agreeing with Browne-Wilkinson, Lord Griffiths also wrote, in regards to legislative interpretation, that:
The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.
Mackay, in his dissenting judgment, came to the same conclusion as the rest of the House on the interpretation of the Finance Act, but without the use of Hansard. Although he agreed that such a use would not violate Article 9, he argued that it was not appropriate:
For several judges, the use of Sheldon's statement in Parliament was a deciding factor. In the initial hearing, Lords Bridge, Browne-Wilkinson and Oliver were all in favour of dismissing Hart's case, later changing their mind with the new evidence available to them. Lord Griffiths, on the other hand, was not swayed by the use of Sheldon's statement; he wrote that " I should myself have construed the section in favour of the taxpayer without recourse to Hansard".
Change to the law
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
wrote in the 18th century that to allow judicial review of "unreasonable" legislation was to "set the judicial power above that of the legislature, which would be subversive of all government". Historically, the courts had been more lenient; while this suggestion first appears in the 14th century, with the intention that legislation was best interpreted by those who had written it, the principle was not strongly followed. In the 1678 case of Ash v Abdy,[1678] 3 Swan 644 Lord Nottingham
Heneage Finch, 1st Earl of Nottingham
Heneage Finch, 1st Earl of Nottingham, PC , Lord Chancellor of England, was descended from the old family of Finch, many of whose members had attained high legal eminence, and was the eldest son of Sir Heneage Finch, recorder of London, by his first wife Frances Bell, daughter of Sir Edmond Bell of...
chose to refer to the parliamentary history of the Statute of Frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
, and in Millar v Taylor,[1769] 4 Burr 2303 in 1769, the first case to explicitly state this principle (as "The sense and meaning of an Act of Parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the House where it took its rise"), the court chose to depart from it. The principle was most used during the 19th and 20th centuries, with a noted example being Beswick v Beswick,[1968] AC 58 where Lord Reid
James Reid, Baron Reid
James Scott Cumberland Reid, Baron Reid, CH, KC FRSE was a Scottish Unionist politician and judge. His reputation is as one of the most outstanding judges of the 20th century....
maintained that it would be inconvenient and expensive for lawyers to have to refer to Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
when preparing cases. Both the English
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
and Scottish Law Commission
Scottish Law Commission
The Scottish Law Commission is Scottish advisory public body established by Parliament of the United Kingdom in 1965 to keep the law of Scotland under review and recommend necessary reforms to improve, simplify and update Scots law. It plays a leading role in developing the law for the people of...
s agreed with the rule in their 1969 Report on the Interpretation of Statutes.
During the late 20th century there was a gradual "retreat" from this rule; in Sagnata Investments Ltd v Norwich Corporation,[1971] 2 QB 614 the courts allowed Hansard material to be submitted to determine the purpose of legislation (but not to interpret the statute), and in Pickstone v Freemans plc,[1989] AC 66 it was allowed to assist in the understanding of delegated legislation. A noted attack on the rule was made by Lord Denning in Davis v Johnson,[1979] AC 264 where he said that asserting that the courts could not use Hansard was similar to saying that the judges "should grope about in the dark for the meaning of an Act without switching on the light. In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings." Despite these exceptions, the courts regularly maintained that it was not possible to use internal Parliamentary discussions as an aid to legislative interpretation. The result of Pepper was a reversal of that rule; a court could use internal Parliamentary discussions where it was relevant to "the very point in question in the litigation", where a piece of legislation is "ambiguous or obscure, or the literal meaning of which leads to an absurdity", with the intention being to understand "the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words".
The decision in Pepper has been linked to a positive move in statutory interpretation that had been proceeding since the end of the Second World War. Previously, the dominant approach was that of the literal rule, supplemented by the golden
Golden rule (law)
In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “mischief rule.”...
and mischief rule
Mischief rule
The mischief rule is one of three rules of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “golden rule.”...
s (that interpretations should not be made if they were to lead to absurdity, and that interpretations should take into account the intention behind the statute). These approaches all limited the amount of material which could be used by a judge when interpreting the actions of Parliament. Following the 1969 Law Commission
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
report The Interpretation of Statutes, British courts began to use a more purposive approach
Purposive rule
There are two broad approaches to interpretation: the literal approach and the purposive approach. The literal approach is dominant in the UK. The judge looks at the words in the statute and it is rare for him to look outside the Act to find the meaning. In contrast, the Purposive approach looks...
, which directed that when interpreting a statute they should examine the purpose behind it, rather than simply using the text of the statute itself. In effect, this widened the amount of material judges could use, including not only the statute but reports made by government bodies, the Law Commission and Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
s. The impact of Pepper was to include Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
in this list of acceptable material, not only to establish the overall purpose of an act but to define what was meant by a particular provision.
In other jurisdictions
In other common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, interpretation for similar situations is significantly different. In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, for example, four different interpretative doctrines are used in understanding taxation laws; "strict construction, purposive interpretation, the plain meaning rule, and the words-in-total-context approach". In Stubart Investments Limited v The Queen,[1984] 1 SCR 536 the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decided to reject a strict approach and instead use the rule that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". Since then, however, both the purposive
Purposive rule
There are two broad approaches to interpretation: the literal approach and the purposive approach. The literal approach is dominant in the UK. The judge looks at the words in the statute and it is rare for him to look outside the Act to find the meaning. In contrast, the Purposive approach looks...
and plain meaning
Plain Meaning Rule
The Plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts...
approaches have been used. Academics have rejected the idea that legislative history should be an aid to statutory interpretation, arguing that "[i]t would introduce intolerable uncertainty ... if clear language in a detailed provision of [an] Act were to be qualified by unexpressed exceptions derived from a court’s view of the object and purpose
of the provision", and that it violates the rule of law, which requires that laws be performable. The average citizen does not have access to the legislative history of an Act, which under the Pepper approach could very well change the meaning of the statute completely.
United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
courts regularly use such interpretation, partially because there are significant differences between the British and American legislative systems. In the United States, legislation is regularly subject to negotiation and altered after being introduced to Congress, and so it is in the courts' interest to look at the particular Act's history when interpreting it. The range of sources accepted is "richer and more diverse", with individual Senators and Representatives and members of the Executive called to give evidence all valid. In the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, 145 decisions (approximately 20% of the decisions given) between 1996 and 2005 reference legislative history. In the House of Lords and Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
, only 9.8% of decisions use legislative history as a tool. It is noted, however, that the House of Lords and Supreme Court rely on statutes less often than the United States equivalent. Michael Healy, writing in the Stanford Journal of International Law, notes that the use of statutory interpretation in the US Supreme Court combined with the uncertainty over what approach the court will take means lawyers have to write extremely broad arguments, increasing the cost of litigation — a concern raised in Pepper.
Approval
J. C. Jenkins, Second Parliamentary Counsel at the Office of the Parliamentary CounselOffice of the Parliamentary Counsel (United Kingdom)
The Office of the Parliamentary Counsel is responsible for drafting all government Bills that are introduced to Parliament. Established in 1869, the OPC has been part of various departments and is currently part of the Cabinet Office...
, has expressed some approval at the decision. Firstly, he claims that it will significantly change the way legislation is drafted. Prior to Pepper, draftsmanship was a "time consuming" and "frustrating rather than enlightening" business. There are risks of "excessive detail, over-elaboration, verbosity, prolixity, iteration, tedious repetition", and so a draftsman avoids directly dealing with every single problem, instead following the rule set out by the Renton Committee to ensure that "sufficient certainty is obtained for a fair-minded and reasonable reader to be in no doubt what is intended, it being assumed that no one would take entirely perverse points against the draft, or that such points would be brushed aside by the court". The draftsman may be in conflict with a government official who wishes to be overly specific, where this general rule renders their concerns moot; in such situations, the ability to include a passage of a Minister's speech as a way to ensure that the courts will interpret legislation in a specific way may clear up any doubts they feel. As such, Jenkins feels that Pepper may make the jobs of parliamentary draftsmen much easier. Although one academic called Pepper a "long overdue" decision from "which there is no turning back", the overall reaction was a negative one. The decision can be interpreted as promoting legislative supremacy, a key point in a system where parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
is confirmed.
Criticism
The House of Lords' statement on parliamentary privilege was assessed by the Joint CommitteeJoint committee
A Joint Committee is a term in politics that is used to refer to a committee made up of members of both chambers of a bicameral legislature. In other contexts, it refers to a committee with members from more than one organization.-Republic of Ireland:...
on Parliamentary Privilege, which recommended that Parliament not counter the decision in Pepper v Hart, but cautioned that this should not lead to any further weakening of parliamentary privilege. However, academics widely condemned the decision and the thinking behind it. Academic Aileen Kavanagh questioned the logic used; the House of Lords was essentially saying that, where a minister has made a statement about an act's intent that was not questioned by Parliament, that statement can be used as evidence. However, there are many reasons why Members of Parliament might not question a statement, and this does not necessarily indicate that they approve of it; in the case of the Finance Act
Finance Act
In the UK, the Chancellor of the Exchequer delivers an annual Budget speech on Budget Day, outlining changes in spending, as well as tax and duty. The changes to tax and duty are passed as law, and each year form the respective Finance Act...
, for example, it could simply be that as the statement was not going to be added to the statute, they found no reason to actively oppose it. At the same time, different Members of Parliament may approve of a statutory provision for different reasons. The fact that a minister gives certain reasons for including a provision does not necessarily indicate that Parliament agrees; only that Parliament also feels, for whatever reason, that the provision should be included. The decision also raises questions about the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
in the United Kingdom; it has been consistently maintained that it is Parliament, not the executive, which passes legislation. If one accepts that statements by the executive can allow them to specify the meaning of particular laws without formally including them in statutes where they can be approved by Parliament, it violates this separation of powers, allowing the executive to make law.
With these issues, Kavanagh argues that there are likely to be consequences. Firstly, if judges replace the text of a statute with the meaning given to it by a single minister in Parliament, there is a risk that they will attribute a meaning to it which was not supported by the MPs; interpretations, based on the views of ministers, are more likely to reflect the executive's intention than that of Parliament. Kavanagh also suggests that it could impact on the actions of ministers; rather than attempting to specify law through the difficult route of placing it in legislation, they can simply make a statement within Parliament about the legislation's intent. Lord Mackay's worry that this would increase the cost of litigation was also considered; under Pepper, every lawyer must go through every word said in both Houses of Parliament and in the various committees to ensure that they are giving the best advice to their client. Academics have also expressed worry about the reliability of Hansard as a source; "the debate on the Bill is a battle of wits often carried out under extreme pressure and excitement where much more than the passage of this Bill may be at stake. The Ministers supporting it cannot be expected to act as if they were under oath in a court of law".
The decision also contradicted previous precedent as to the nature of evidence. John Baker
John Baker (legal historian)
Sir John Hamilton Baker, QC, FBA, FRHistS, FBS is an English legal historian. He has been the Downing Professor of the Laws of England at the University of Cambridge since 1988.-Biography:...
notes that it violates strong rules which exclude the use of written evidence to interpret a document, unless the evidence was found in said document. Baker also argued that ministerial statements should not be used as evidence because they are irrelevant; "no individual member of Parliament is in a position to state what that intention is or to speak for the silent majority. Parliament acts as a corporate body and the only expression of its common intention is the text to which the Queen and both Houses have given their unqualified assent. What passes in one House is not formally known to the other". An individual MP's statements, minister or not, may be based on a false understanding of the legal issues; MPs regularly vote for proposals having disagreed with the statements of the spokesman simply because they like the proposal itself.
J. C. Jenkins, who interprets Pepper as making the jobs of parliamentary draftsmen much easier in some ways, also foresees it as making the job more difficult. Because of the added resources courts can draw on, there is now increased pressure to produce statutes which will not be interpreted in the wrong way. Departments sponsoring legislation normally prepare briefings for their ministers when talking in Parliament; draftsmen may now be expected to vet these, a time-consuming process. The draftsmen may also have to look at material produced by these departments other than the statutes, as it may be discussed in court; in Pepper, Lord Browne-Wilkinson considered a press release produced by the Inland Revenue. The decision also changes parliamentary practice. Under previous practice, if a minister was asked a question publicly and could not immediately reply with an answer, or publicly made a statement that later turned out to be incorrect, he would privately write a letter explaining or correcting himself. As a result of Pepper, such private replies may have to be made publicly. In addition, Members of Parliament are more aware that their statements, and those statements they induct Ministers to make, may be looked at by the courts. As a result, these statements and inducements may be structured differently, and MPs may be more concerned that their issues be dealt with "at length and on the record", making parliamentary proceedings "more formal, more cluttered, and more protracted".
Interpretation and later development
There has been a dispute over the interpretation of the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
' intent in regards to the use of Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
in court, sparked by Lord Steyn
Johan Steyn, Baron Steyn
Johan van Zyl Steyn, Baron Steyn PC is a South African/English jurist, and until September 2005 a Law Lord.Born in Cape Town in 1932 he studied law at the University of Stellenbosch before reading English as a Rhodes Scholar at University College, Oxford...
's Hart Lecture on 16 May 2000, titled "Pepper v Hart: A Re-examination". Steyn suggested that Pepper v Hart was limited to "an estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
argument", and Hansard's use in court should "be confined to the admission against the executive of categorical assurances given by ministers to Parliament"; essentially, that Hansard should only be used if it the purpose is to establish that ministers made certain assurances to Parliament, with the intent being to prevent the executive going back on its promises. Stefan Vogenauer
Stefan Vogenauer
-References:...
disagrees that this was the House of Lords' intent in Pepper, pointing out that Hart's counsel had, during proceedings, made an argument along the lines of estoppel — one the Lords had completely ignored when making their decision.
The courts' cautiously optimistic acceptance of Pepper, which included an attempt to include it in the House of Lords' Practice Directions, soon began to wane. Although the lower courts applied the decision and allowed the use of Hansard, and the Lords itself initially followed it in R v Warwickshire County Council, ex parte Johnson,[1993] 1 All ER 299 several objections and limits were expressed in later obiter dicta and ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
. The first judicial complaints were voiced in 1997 by Lord Hoffmann
Leonard Hoffmann, Baron Hoffmann
Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009...
in The Intolerable Wrestle with Words and Meanings, where he criticised the increased expense and drop in efficiency which it created. In a speech to the Chancery Bar Lord Millett
Peter Millett, Baron Millett
Peter Julian Millett, Baron Millett, PC, QC is a British former judge and barrister.The son of Denis and Adele Millett was educated at Harrow School, London and Trinity Hall, Cambridge, where he received a Master of Arts in classics and law in 1954. From 1955 to 1957, he served as Flying Officer...
calling the judgment "a regrettable decision" that "was not only misguided in practical terms, it was in my view contrary to principle", saying that: The courts immediately began to "whittle down" the precedent set by Pepper. The first direct attack came through Massey v Boulden,[2003] 2 All ER 87 where the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that Hansard could not be used in criminal law cases, since "the principle that penal statutes are to be narrowly construed intervenes to resolve any ambiguity without resort to Hansard".
In Robinson v Secretary of State for Northern Ireland, Lords Hobhouse
John Hobhouse, Baron Hobhouse of Woodborough
John Stewart Hobhouse, Baron Hobhouse of Woodborough, PC , was a British judge and Law Lord.He was born in Mossley Hill, Liverpool. He was educated at St Andrew's, Pangbourne, and Eton. After working abroad in Australia and New Zealand on a sheep farm, Hobhouse returned to Christ Church, Oxford in...
, Hoffman and Millett said that Mackay, with his dissenting judgment, had "turned out to be the better prophet", with large amounts of inefficiency and expense associated with Pepper. In the Spath Holme judicial review case,[2001] 2 WLR 15 Lords Bingham, Hope and Hutton held that Hansard could only be used in pursuit of "ascertaining the meaning of a particular word or phrase", rather than simply where a piece of legislation is "ambiguous or obscure, or the literal meaning of which leads to an absurdity". In McDonnell,[2003] UKHL 63 the Lords further limited the use of Hansard, saying it could not be used to overrule precedent set before courts were able to reference it, except in exceptional circumstances. Wilson and others v Secretary of State for Trade and Industry,[2003] UKHL 40 the first case involving Hansard after the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
put further limits on its use; ministerial statements made in Parliament can not be treated as sources of law, only as supporting evidence. This "retreat" from Pepper was resisted in the Court of Appeal, primarily by Lord Phillips, who praised the decision following Steyn's lecture in 2000, but has been repeatedly emphasised in the House of Lords and Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
. As a result of these changes, Stefan Vogenauer
Stefan Vogenauer
-References:...
has said that "the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless".
Despite the judicial criticism and limits placed on Pepper, references to Hansard have apparently increased since the beginning of the 21st century. It is also noted that the most recent generation of House of Lords and Supreme Court judges have been willing to regularly reference legislative history in their arguments. In Harding v Wealands,[2006] UKHL 32 for example, three Law Lords were willing to apply Pepper, even Lord Hoffman who had previously voiced concerns. Lord Carswell noted that Pepper had been "out of judicial favour in recent years", but added that legislative history was "perhaps especially [useful] as a confirmatory aid".
Case citations
- Citation format: year of decision; abbreviated title of the court/reporter; the decision or page number