The famous decision of Pepper v Hart overturned the rule that travaux préperatoires cannot be taken into consideration by the judges. This essay provides a brief analysis of the decision and its impact on statutory interpretation to this day.
Pepper v Hart – What does the decision mean?
a. Introduction
Judges have the important role of interpreting statutes. Sometimes there is ambiguity in a statute’s meaning, either because words have several interpretations, dispute over its purpose, or the development of a new unforeseen situation not covered by the law. Literature identifies three different aids, or so-called rules of construction, the used to interpret statute: the Literal, the Golden or the Mischief Rule.
According to the Literal Rule words are given their ‘plain, ordinary or literal meaning’. The Golden Rule modifies the Literal rule by seeking to avoid any absurdity. The Mischief rule on the other hand suggests a purposive approach and allows the judge to consult working papers in order to find out the mischief that the statute was intended to remedy.[1]
However, these ‘rules are merely guidelines’ as there ‘is no external control on the judges.’ Reddish calls this the ‘all powerful judiciary.’[2]
Judges can refer to external sources, dictionaries, textbooks, earlier statutes or even working papers as aids. In recent years we can observe a slight change in the extent parliamentary material can be considered.
The famous decision of Pepper v Hart[3] overturned the rule that travaux préperatoires cannot be taken into consideration by the judges. This essay provides a brief analysis of the decision and its impact on statutory interpretation to this day.
b. The Facts of Pepper v Hart
A group of teachers at an independent public school brought this case to the courts. They were only paying one fifth of the normal fees on the grounds that their children filled up places that the school was unable to fill. The tax office argued that taxes should be paid on the average cost of the benefit and that the teachers should contribute to the general costs of the school, whereas the teachers argued the tuition fee should be the tax basis, which was considerably lower.[4]
This case was of constitutional importance as it raised the question of the permissibility of judicial reference to parliamentary debates.
c. Ratio decidendi
The ratio decidendi of Pepper v Hart is that reference to parliamentary discourse, for example, through Hansard, the official report of the proceedings and debates of the Houses of Parliament[5], is permitted under certain circumstances. First, Lord Browne-Wilkinson states, the legislation must be either ambiguous, obscure, or following its literal meaning would lead to an obscurity.[6] Secondly, the material relied on must consist of statements made by a minister or other promoter of the Bill, and finally the statements relied on must be clear.[7]
d. The impact of the decision
The actual difference made by Hansard access in judicial statutory interpretation is unknown. There is ‘no substantial empirical study’ available.[8]
In the following years the decision was referred to in several cases (WestlawUk delivers 30 cases decided by senior courts in which P v H has been cited) and it has been debated in literature. Steyn and Vogenauer have re-examined the decision itself and noticed a retreat from P v H.[9] In opposition to Steyn, who strongly criticized the decision, Vogenauer confirms the decision and even pleads for a reversal of the retreat he could observe[10]. Lord Steyn has concerns about the constitutionality of P v H because ministerial statements could be given same status as law.[11] According to him P v H ‘also substantially increased the cost of litigation to very little advantage.’[12]
Both support their view with R v Secretary of State for the Environment, Transport and the Regions and another, ex parte Spath Holme[13] or Melluish v BMI (No.3) Ltd[14] where access to Hansard was denied. In the Spath decision it was held that resort to Hansard as an aid to interpretation should be the exception rather than the rule.[15] The Melluish decision excluded statements that have been subsequently made by a minister.[16]
In Robinson v Secretary of State for Northern Ireland[17] the premises of P v H were undoubtedly approved. Admission of ministerial statements as an aid to statutory construction was declined because they were unclear and inconclusive.
Zander in contrast to Steyn and Vogenauer states that the following decisions show that the ‘strict conditions [of P v H ] have frequently been ignored’ and refers to Warwickshire County Council v Johnson[18] where there seemed to be no ambiguity in the statute and access was still allowed. Similarly the House of Lords ‘referred to Hansard to confirm interpretations that would have been adopted anyway.'[19]
He fortifies his opinion with the decision Wilson v First County Trust[20] where the interpretation of rights under the ECHR ‘opens the parliamentary materials door very wide.’[21] This would suggest that the rules defined in P v H have been relaxed.
But according to Aileen Kavanagh we find ‘much more agreement ... on the general issue ... [than] disagreement in the application of Pepper v Hart to the particular facts of the cases.
She refers to the Spath Holme decision where ‘four out of the five members of the House of Lords stressed that the conditions laid down in that case for the admissibility of Hansard should be strictly insisted upon.’[22]
e. Conclusion
As we can see there is diverse opinion of how P v H was treated in subsequent cases. Often the authors even argue with the same cases. What we can reason from this that there was no real change in the application of P v H; it was neither overruled nor left inapplicable. I think the application of P v H in the succeeding cases points up that UK jurisprudence has intensified a purposive approach towards statutory interpretation and in the same breath given up the historical literal approach.
Allowing judges to use Hansard as an aid to understanding statutes can be seen positively, since if it helps them implement the Legislature’s purpose. It reinforces the judicial role as upholders of the law and not lawmakers. Three Rivers District Council v Bank of England (No.2)[23] highlights the importance of a purposive interpretation in the European dimension. The court held that reference to Hansard should be permissible in order to find out the actual purpose of a statute ‘to give effect to some particular EC directive.’[24] In Three Rivers the legislation was not ambiguous in itself.
Carby-Hall outlines perfectly the significant change of policy of statute interpretation in British courts: ‘The British principles of interpretation are not suited to the interpretation of European laws. The European Union style of drafting legislation is different from the British style for in the former case broad principles are laid down leaving the gaps to be filled in by judges who are required to apply the spirit or purpose of the legislation. In the latter case, every detail is provided for by legislation. A fundamental change of policy had therefore to take place!’[25]
We can see a change ‘from the purely British "purist" approach to a "purposive" approach.’[26]
Maybe there was some truth in Celsus´ words ‘ SCIRE LEGES NON HOC EST VERBA EARUM TENERE SED VIM AC POTESTATEM - To know the law is not merely to understand the words, but as well their force and effect.’[27]
Bibliography:
Books, articles etc.
Abbildung in dieser Leseprobe nicht enthalten
Legislation:
Finance Act 1976
Lectures:
Reddish, Michael (2005 December 2); Lecture presented in Modern English Legal System at University of Warwick, UK
Databases:
WestlawUK
Lexis Nexis
Encyclopedia:
Oxford English Dictionary On-line Version, 2nd edition, 1989. (http://dictionary.oed.com/) Oxford University Press 2005. [Last accessed on December 10, 2005]
Wikipedia: The Free Encyclopedia. December 10, 2005. Wikimedia Foundation. <http://en.wikipedia.org>. [Last accessed on December 14, 2005]
[...]
[1] (McEldowney 2002:72)
[2] (Reddish 2005:1)
[3] Pepper v Hart, [1993] A.C. 593.
[4] (Newspapers:1-3)
[5] (OED 1989)
[6] (P v H, p. 640)
[7] (Ingman 2004:292)
[8] (Zander 2004:173)
[9] (Steyn 2001:79)
[10] (Vogenauer 2005:46)
[11] (Lynch 2003:647)
[12] (Steyn 2001:60)
[13] 2 WLR 15, 33 HLR 301
[14] Melluish v BMI (No.3) Ltd, [1995] 4 All ER 453
[15] (Ingman 2004:294)
[16] (Slapper & Kelly 2004:204)
[17] Robinson v Secretary of State for Northern Ireland, [2002] UKHL 32
[18] Warwickshire County Council v Johnson, [1993] 1 ALL ER 299
[19] (Zander 2004:171)
[20] Wilson v Secretary of State for Trade and Industry, [2003] 3 W.L.R. 568
[21] (Zander 2004:172)
[22] (Kavanagh 2005:110)
[23] Three Rivers District Council v Bank of England, [1996] 2 All ER 363
[24] (Slapper & Kelly 2004:204)
[25] (Carby-Hall 2002:8)
[26] (ibid 2002:8)
Frequently asked questions
What is the subject of "Pepper v Hart – What does the decision mean?"?
The document discusses the landmark legal case of Pepper v Hart and its impact on statutory interpretation in the UK. It explores how the decision altered the rules regarding the use of parliamentary materials, specifically Hansard, as an aid in interpreting ambiguous legislation.
What is the Literal Rule, the Golden Rule, and the Mischief Rule mentioned in the text?
These are three different aids, or rules of construction, used by judges to interpret statutes when there is ambiguity. The Literal Rule gives words their plain, ordinary meaning; the Golden Rule modifies the Literal Rule to avoid absurdity; and the Mischief Rule takes a purposive approach, allowing judges to consult working papers to understand the problem the statute intended to remedy.
What was the Pepper v Hart case about?
The case involved teachers at an independent school who were paying reduced school fees. The tax office argued that taxes should be paid on the average cost of the benefit, while the teachers contended that the tuition fee should be the tax basis. The core issue was whether judges could refer to parliamentary debates (Hansard) to interpret the relevant tax legislation.
What is the ratio decidendi of Pepper v Hart?
The ratio decidendi is that reference to parliamentary discourse (Hansard) is permitted under certain circumstances. Specifically, (1) the legislation must be ambiguous, obscure, or lead to an absurdity if literally interpreted; (2) the material relied on must be statements made by a minister or promoter of the Bill; and (3) the statements must be clear.
What impact did the Pepper v Hart decision have?
The decision overturned the previous rule that travaux préparatoires could not be considered by judges. It allowed the use of Hansard under specific conditions to clarify the intent of Parliament when drafting legislation. However, the extent of its actual impact is debated, with some arguing it increased litigation costs with little advantage, while others claim it has been ignored or relaxed in subsequent cases.
What are some criticisms of the Pepper v Hart decision?
Lord Steyn voiced concerns about the constitutionality, arguing that ministerial statements could be given the same status as law. Other criticisms include the potential for increased litigation costs and the difficulty in determining which statements qualify for consideration.
Which cases are mentioned as examples of the application or rejection of Pepper v Hart?
The document mentions several cases, including R v Secretary of State for the Environment, Transport and the Regions and another, ex parte Spath Holme, Melluish v BMI (No.3) Ltd, Robinson v Secretary of State for Northern Ireland, Warwickshire County Council v Johnson, and Wilson v First County Trust. These cases illustrate both the approval and the denial of access to Hansard under the Pepper v Hart principles.
What is the conclusion regarding the impact of Pepper v Hart?
The conclusion is that the application of Pepper v Hart has led to a more purposive approach to statutory interpretation in the UK, moving away from a purely literal approach. It highlights the importance of understanding the intent of the legislature, especially in the context of European Union directives.
- Citation du texte
- Philipp Hujo (Auteur), 2005, PEPPER v HART, Munich, GRIN Verlag, https://www.grin.com/document/109863
