Describe the court's use of hansard, using cases to illustrate your answer.

Hansard is a record of what is discussed in Parliament. It includes votes, written ministerial statements and written answers to parliamentary questions. Published on a daily basis, it covers debates from the previous day.

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Hansard is an external aid but it is used in a much more wider sense in the court's attempts to interpret Parliament's intentions. The court's use of Hansard is linked to the purposive approach to statutory interpretation which looks at what Parliament was trying to achieve. Hansard is an official report of the proceedings of Parliament.


Before we look at the court's use of Hansard in more detail it is important to note that there are three rules of interpretation which have been developed by the courts. These rules or approaches are the literal rule which uses the plain ordinary meaning of words; the golden rule which is a modification of the literal rule and is resorted to in order to avoid an absurd result and the mischief rule which stemmed from Heydon's case in 1584 and attempts to seek out the gap or 'mischief' in the law the Act was intended to cover. Finally there is the more modern purposive approach to interpretation which looks at the intention or purpose of the legislation in question and not just the 'mischief' but may also fill in any gaps.


One factor which is likely to influence whether a judges finds it necessary to allow the use of Hansard in court proceedings is their own approach to their role as a judge. There is no hard and fast rule which determines which rule to a judge should choose and it is left to the judges to decide. However it is fair to say that a judge using a narrower approach to interpretation such as the literal approach is unlikely to resort to the use of Hansard as this would take them beyond looking at the plain ordinary words used in the legislation itself. There is also a view that judges who lean towards a more traditional approach to their role of simply declaring the law and not making it are more likely to use the literal approach and that more progressive or creative judges are more likely to use the purposive approach.


The use of Hansard has not always been acceptable and up until 1993 the courts were in effect forbidden to look at the debates in Parliament. A case which illustrate served to confirm this position and amounted to a set back for Lord Denning is the case of David v Johnson (1979) which involved the question of whether the Matrimonial Proceedings Act 1976 applied to the parties. The Act had only been passed a few years before and was intended to provide parties to a relationship with a remedy in the form of a restraining order and other special powers to prevent further violence and abuse. The male partner was violent and the woman fled to a battered wives' refuge. The issue was whether the wife was entitled to an order as provided for under the Act. The problem was that precedent to the effect that the Act did not provide protection if she was a joint tenant or joint owners presumably because the law of property was there to assist without recourse to the Act. It must be remembered that this was seen as an important piece of social legislation providing for hard won rights only to find that a narrow interpretation was being used.


Lord Denning felt so strongly about this that he assembled a full Court of Appeal (five judges sitting together) and by a majority they held that the Act did protect a female partner or cohabitee and that it did not matter that she was not a tenant or only a joint tenant. The Lord Denning said these famous words "Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament.  They should grope about in the dark for the meaning of an Act without switching on the light.  I do not accede to this view.  …'. It was not surprising that the Court of Appeal granted an injunction to the wife.


It is by appreciating the purpose of the legislation and the background to it and the number of lives destroyed possibly by domestic violence that one can appreciate why Lord Denning and other progressive judges felt that it was part of their role to seek out the intentions of Parliament. It was this passion which led Lord Denning to the view that the Court of Appeal should be free to depart from its own previous decisions if it felt it right to do so, much like the former House of Lords.


When the matter reached the House of Lords there was a firm rebuke awaiting Lord Denning by Lord Scarman who said that he was wrong to consult Hansard saying 'such material is an unreliable guide to the meaning of what is enacted.  It promotes confusion not clarity..'.


The matter was put right many will say by the decision in Pepper v Hart (1993) which allowed Hansard to used as a tool of interpretation subject to conditions. The conditions being that Hansard could only be considered if the words used in the Act were ambiguous and that any introductory speeches by a Minister or promoter of the Bill were clear.


Hansard is the official report of what is said in Parliament when the Act was debated. There would be little point at just looking at any publication of Hansard as it is only the debates when the Bill in question was being introduced and going through the various legislative stages before becoming an Act that are looked at.


In the case of R v Deegan (1998) the court had occasion to look at Hansard to try and discover the intention of Parliament. Hansard is commonly used with the purposive approach to statutory interpretation. The purposive approach is probably wider in its approach than any other rule of interpretation in that it focusses upon what Parliament intended as opposed to ascertaining the meaning of individual words or terms. Whereas other rules of statutory interpretation such as the literal rule are much narrower in their approach. The literal rule concentrates upon trying to establish the literal meaning of the words even though this may result in a manifest absurdity. Any external aids used in conjunction with the literal rule are limited to the Oxford English dictionary in use at the time the legislation was passed.


Aids to interpretation can be internal or intrinsic (forming part of the Act itself or within the Act) such as other parts of the Act or external or extrinsic meaning outside the Act itself such as Hansard or dictionaries.


In Deegan Lord Justice Waller found that the statements of the Ministers were not clear in the sense that Pepper v Hart required because 'the phrase 'locking pocket knives' was an ambiguous phrase.' It was for this reason that the court decided that the conditions of Pepper v Hart were not met and decided not to take the statements in Hansard into account. To do so in their mind meant that they 'would go beyond its proper function.'


It might seem a small matter but at the heart of the problem is knowing the extent to which judges can create law and the point where it really ought to be left to Parliament whose job it is to legislate as part of it's democratic role. Judges are not elected after all.


In Three Rivers District Council v Bank of England (1996) the court took the view that in some circumstances the court would be entitled to take a wider view about the use of Hansard. This included situations where the legislation was adopting an international convention or a European directive with the intention that it became part of English law, so that it was particularly important to consider material from Europe and to consider what was intended.


It has now become accepted practice to consider the reports of law reform agencies such as the Law Commission which may have led to the introduction of the Bill as part of any proposals for reform so there are other external aids if Hansard is not considered helpful.


The broad approach taken by the purposive approach allows the judges to look beyond the words used to find an interpretation which is more consistent with the general purpose of the legislation as enacted by Parliament. Other rules such as the literal rule and golden rule are more concerned with meaning of individual words and phrases themselves. In this regard the purposive approach starts from a much more positive position in that it is similar to the mischief rule in that it looks for the purpose or intention of Parliament. Whereas any systematic or unified approach which takes as its starting point the plain ordinary meaning of words is much further back from seeking the purpose or intention of Parliament.

As a natural consequence of this approach the judges find themselves concerned with matters which are outside the confines of the particular statute itself.  This includes the context in which the law was created.  The judges therefore consider it  quite appropriate and proper to examine the concerns of the government and Parliament at the time the Act was passed. This being the case judges using the purposive approach are much flexible in their approach to extrinsic aids than judges using other more traditional rules.

Lord Simon was quite clear in his approach as he sought the meaning of 'premises' for the purposes of the Rent Act in Maunsell v Olins (1975) when he said The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language.’ The purposive approach changes the emphasis as to way the court approaches statutory interpretation right from the start.

In particular if legislation has come about as a result of a review of the law by the Law Commission, and recommendations for change and improvements then the judges may well be willing to consider the Law Commission's Report.  The Law Commission's Report might well include draft provisions for inclusion in any subsequent Bill.  This is because the judges will realise quite sensibly that the Law Commissions work will have been arrived at as a result of a fully considered examination of the area of the law in question including any shortcomings or other areas for improvement.  The Law Commission is after all charged with keeping the law under review and was set up in 1965 for this very purpose.

Similarly, the judges may well be willing to consider any government minister’s introductory statement made in support of the proposed legislation at the time it was introduced.  Such considerations are now permitted under the House of Lord‘s ruling in
Pepper v Hart  (1993) which overruled Davis v Johnson (1967), subject to the limitations as to its use set out in the judgement.

Up until now we have been concerned with matters within the knowledge or awareness of Parliament at the time when legislation was passed but what if the courts encounter a situation which suggests it concerns something that was not within the contemplation of Parliament? This very point arose in the case of Royal College of Nursing of the United Kingdom v Department of Health and Social Security (1981) and it was Lord Wilbeforce who took the view that judges cannot fill in the gaps by asking themselves what would Parliament have done in the case before them. So the purposive approach should not be thought of as a blank canvass as such but the purposive approach was said to be allowable if the subject matter of the case was of the same genus as addressed in the legislation and Parliament's intention was found to be clear and an extended approach was necessary to give effect to it. So this permitted, albeit subject to limitations, for the further development and progress of the law to new situations.

An example of such an extended interpretation using the purposive approach can be found in the case of R (Quintavalle) v Secretary of State for Health (2003). The then House of Lords had to consider whether organisms created by cell nuclear replacement (CNR) fell within the definition of 'embryo' for the purposes of the Human Embryology and Fertilisation Act 1990. In arriving at a decision that such organisms came within the definition and did not distinguish between embryos created through fertilisation or through CNR as Parliament was concerned about the potential for a wrong use of embryos through fertilisation as CNR had not been developed at the time. The courts in so extending the approach were giving effect to the purpose of the Act for affording the same protection to embryos created through CNR.

The case of
R v Registrar-General  ex parte Smith (1990) concerned the application for information to enable Smith to obtain a birth certificate which in turn might allow him to ascertain the whereabouts of his natural mother.  Smith had two convictions for murder.  Although the relevant words of the Act in question were clear, the Court of Appeal decided that the Act could not have been intended to facilitate serious crime and ruled that the Registrar-General did not have to supply the information sought. The legislation in issue in this case was clear and unambiguous and the case demonstrates seeking out Parliament's intentions allows more flexibility than the other rules in its approach to interpretation.

Lord Denning was a champion of the purposive approach and did not attempt to disguise his perception of his role of a judge.  This was clearly shown in the case of
Magor and St Mellons v Newport corporation (1950) when he used words to the effect that we sit here to find out the intention of Parliament and carry it out we do this better filling in the gaps……….’  However whilst he was supported in this approach by the likes of Lord Steyne, he did have his opponents not least, Lord Simmonds and Lord Scarman, who were both of the firm opinion that it was Parliament’s job to intervene in such circumstances.

However it could be argued that it is more likely to
respect the wishes of Parliament since it seeks to find and fulfil the legislative purpose.  This is not necessarily the case with either the literal or golden rules.  In the case of the literal rule it is often criticised for leading to unfair and absurd decision which can hardly be argued to be Parliament's true intentions.  The golden rule is a modification of the literal rule and can lead to compromise and dissatisfaction.

The purposive approach is modern and can be said to be more akin to the interpretation of European legislation and the Human Rights Act which are written in very broad terms setting out general principles.  Under this approach judges interpret according to the spirit rather than the letter’ of the law.

As regards the matter of membership of the European Union, and the influence of European law we should several aspects about the implications for the purposive approach. It is the preferred method by many of the member states when it comes to their own legislation. The European Court of Justice also adopt this approach when interpreting European law. Furthermore, the Treaty of Rome states that all Member States must 'take all appropriate measures … ensure fulfilment of the obligations'. In Marleasing SA v La Commercial Internacional de Alimtacion SA (1992) the European Court of Justice ruled that when interpreting national law it should be done so in light of the wording and aim of the European law. This was the case even if the national law had not been enacted to implement a directive; the obligations applied irrespective of whether the national provisions came into effect before or after any directive was issued and national courts are required to interpret domestic law in a way as to ensure that the objectives of a Directive are achieved.

This preference for the purposive approach can be found in Section 2 (4) of the European Communities Act 1972 and is also responsible in some part for why the purposive approach has grown in use. We are told by the UK Parliament site that '…...As a consequence of the rule of construction in section 2(4) all primary legislation enacted by Parliament after the entry into force of the ECA on 1 January 1973 is to be construed by the courts and take effect subject to the requirements of EU law'.

In Pickstone v Freemans Plc (1989) this departure from the literal words chosen by Parliament can be seen as the House of Lords realised that the reading of words into a statute was required to avoid an infringement of EU requirements. The claimant, Miss Pickstone brought a claim against her employer. The claim was made under under the Equal Pay Act 1970. The claimant was employed as a warehouse operative and was paid the same as male warehouse operatives. Despite this, Miss Pickstone was able to claim that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid more than she was.

Section 3 of the Human Rights Act 1998 says that in so far as it is possible to do so, legislation must be read and interpreted in a way which is compatible with the rights set out in the European Convention on Human Rights although not all cases involve human rights. The effect of this provision is to widen the approach to interpretation at times to ensure that Convention rights are not infringed. This was illustrated in the case of R v Offen (2001) which involved the meaning of the word 'exceptional' for the purposes of the Crime (Sentences) Act 1997. The Act required a life sentence to be given to an offender of a second serious offence unless there were 'exceptional circumstances'. Prior to the commencement of Human Rights Act, the courts in R v Kelly (2000) had decided that 'exceptional' should be given its plain ordinary meaning this resulted in a strict approach which led in turn to life sentences where this could be seen as overly harsh.

In Offen the Court of Appeal took the view that this limited approach was capable of leading to arbitrary and disproportionate sentences in breach of Articles 3 and 5 of the ECHR and found a solution by saying that exceptional for the purposes in question meant that the court had to consider whether the offender was a danger to the public. If the offender was not thought to be a danger then he or she fell within the meaning exceptional circumstances and a life sentence was not imposed. It can be argued the difference the Human Rights Act has made to interpretation leans towards the purposive approach to interpretation, as it requires judges to consider overriding rights and factors beyond the legislation in question.

The opponents of the approach such as Lord Scarman argued that the only way to discover Parliament’s intentions is by applying the words used in the statute.  It is not for a judge to argue that Parliament said one thing but meant another’. It is also argued that the purposive approach does not respect the sovereignty of Parliament whose job it is to legislate in accordance with democratic principles.  Judges are not elected and it is said that the rule allows them too much judicial creativity.

It could be said that the purposive approach and the use of Hansard encourages judges to take matters into their own hands and remedy defects or gaps in the law without the need to refer the matters to Parliament.  However it could be argued that the use of the rule is simply allowing the judges to make use of their skills and experience in an appropriate and effective manner.  Using this approach brings about change without the need for considerable delay which would be the case if a change in the law had to wait for Parliamentary legislation. Parliament’s legislative programme can mean a delay of months or years. There will be a considerable saving in terms of time and resources as a result not to mention justice for those seeking redress in the courts.

It may not be possible to identify Parliament's intentions for the purposes of resolving the case before the judges even after an examination of extrinsic aids. The use of Hansard in some cases does not necessarily mean that Hansard will be helpful. In 2005 the former House of Lords in Jackson and others v Her Majesty's Attorney General acknowledged that the decision in Pepper v Hart was under something of a judicial cloud and that this may have been in part to due to the view that references to Hansard seldom assist. The Lords did speak of the value of ministerial statements as an interpretative aid.

Court costs have long since been a concern for those using the courts and the use of the purposive approach and subsequent consideration and scrutiny of extrinsic aids, such as Hansard, will have an affect on costs as well as court time. In recent years cuts and court closures have become a real concern as well and this is a constant reminder that we need to bear such factors in mind. The use of Hansard is limited to instances of where the words of the Act are ambiguous or obscure or would lead to absurdity and should only be used if there was a clear ministerial statement made when the legislation was introduced and this resolves the problem. It is worth remembering that the Lord Chancellor was a member of the court when the Lords sat to deal with Pepper v Hart. Lord MacKay was the only judge not to agree with the decision allowing Hansard's use and opposed such use on the grounds of time and cost but some members of the legal profession may agree with the predictions of the former Lord Chancellor.

In addition a study of some 34 cases by Vera Sachs in 1982 (pre Pepper) found that 'in every case studied the disputed clause was either undebated or received obscure and confusing replies from the Minister'. Prof Michael Zander conducted a study of cases dealt with by the House of Lords after 1992 and found that there were virtually no cases which showed that the court's decision had been influenced after reading Hansard. This perhaps confirms the view that the reading of Hansard and any ministerial statement is important to the overall interpretative process but that such materials in themselves rarely provide a conclusive and definitive answer.

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