The Hansard as an Aid to Statutory Interpretation

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Background

Statutory interpretation is a mechanism for establishing the meaning of the legislation. Courts in the United Kingdom rely on various aids to statutory interpretation, including the Hansard. Hansard is the title that is commonly understood by many in the United Kingdom and other Commonwealth countries to refer to transcripts of the debates of the parliament. The title emanated from Thomas Curson Hansard who was a renowned London printer and publisher before 1833. Ordinarily, the Hansard captures these debates verbatim. For a long time, according to Magyar (2012), Hansard records could not be relied on as aids to statutory interpretation by a court of law. In Davis v Johnson (1978) 2 WLR 21, the House reprimanded Lord Denning for referring to the Hansard when rendering a judgment in the same case earlier in the court of appeal.

In 1993, this position was overturned when the same House of Lords decided that the Hansard could serve as an interpretation aid to courts. Lord Brown Wilkinson (in Davis v Johnson (1978) 2 WLR 21 stated that parliamentary material should be authorized for use as an aid to the construction of the legislation in question is ambiguous or obscure. According to Jha (2012), the purposive approach to statutory interpretation is relied on by courts when they wish to understand the rationale as to why a law was passed. The common understanding is that every law is passed to address particular mischief in society. As Lord Griffiths stated, courts of law are barred by time from relying on the literal interpretation of legislation. In pursuit of the purposive approach thus, Seidenfeld (2013) asserts that courts have found themselves seeking the guidance of extraneous materials, among them, the Hansard.

The Use of the Hansard (in the UK) as an Aid to Statutory Interpretation

Ordinarily, parliamentarians put the minister (at the time of tabling a bill to the parliament) to the task to explain the rationale behind the bill. According to Bell (2013), this explanation effectively becomes the rationale behind the piece of legislation. Many courts believe that the use of the Hansard aids the legal process, hence facilitating in rendering justice. As Lord Denning argued, courts’ move to avoid consulting the Hansard was tantamount to “groping in the dark” attempting to comprehend the rationale of an Act. Today, as Goldswain (2012) reveals, it is a commonly accepted practice that the Hansard can be considered by courts, particularly where the wordings of the legislation in question are either ambiguous or obscure. Moreover, where the wordings of an Act may occasion an absurdity, recourse is made to the Hansard.

On the other hand, some scholars such as Costelloe (2015) feel that resorting to the Hansard brings with itself various difficulties. It is the feeling of various commentators that parliamentary material is unreliable for use in a court because intentions regarding why a law is being passed may not be constant but subject to change throughout the enactment process. Therefore, according to Costelloe (2015), a court that dwells on the intentionalist approach will incur challenges discerning the intent that carries more relevance relative to the other. Further, relying on parliamentary records limits the court’s ability to think independently, hence diminishing its role as the interpreter of legislation. According to Magyar (2012), Lord Wilberforce argues that this practice degrades the interpretive role of the court to the extent that it functions merely as a mirror of the agency that sponsored a bill to the parliament. Therefore, courts have a limited opportunity to think critically regarding the context and general scheme of such legislation. This situation implies that the courts will even avoid reading the Act as long as the legislative history is available and/or can be reverted to. Subsequently, the practice itself becomes a limitation of the court’s freedom to act independently of the other two arms of the government.

The process of determining the intention of the parliament is lengthy and time-consuming. According to Davis (2012), courts spend unnecessarily long periods perusing volumes upon volumes of the Hansard. Consequently, the adjudication process takes much longer than anticipated. Every time the Hansard is involved, a mini case emerges as the merits and demerits of relying on the said parliamentary records are debated. Importantly, the records of the Hansard demonstrate opposing views by parliamentarians often based on their political party. This biased opposition becomes an impediment to courts that seek to establish the rationale behind some legislation. The result of the extended adjudication process is that the backlog becomes a major cause of concern for the courts. Additionally, courts incur additional costs in the process of relying on external aids.

Those opposed to using the Hansard believe that it promotes confusion rather than certainty. According to Dharmananda and Firios (2015), Lord Scarman described the Hansard as ‘unreliable material’ that should not be used to guide the courts. Ambiguity is often associated with extrinsic aids to statutory interpretation. Given the ‘bias’ aspect of the Hansard, it can be manipulated by opposing solicitors or barristers to advance either side of their case. Lawyers are often looking for doubts on the applicability of a statute to advance their client’s case. Incidentally, judges appear conflicted regarding what constitutes an ambiguous phrase. For this reason, some judges distrust the Hansard, a state that further raises difficulties regarding its usability in a court.

However, Peper v Hart (1992) 1 UKHL 3 lays down a clear direction, namely, the ambiguity requirement, regarding when the Hansard should be considered. The ‘plain meaning rule’ requires statutes to be interpreted as per the obvious connotation. The rule helps to limit the scenarios where recourse can be made to the Hansard. As such, courts may not have trouble when applying evidence obtained from the Hansard. Conversely, courts have an easy time discerning the rationale of a statute since an indicative framework is already in place.

The reference to the Hansard is not necessarily an ‘expensive luxury’ nor is it as time-consuming as opined by the opponents of the practice. Parties to a case often have an opportunity to decide which material they are going to rely upon in prosecuting their case. If then it emerges that they need to refer to the Hansard, they can be requested by the court to arrange for the extra costs occasioned by the process. According to Costelloe (2015), in an adversarial system, the court operates based on the evidence tendered by the opposing parties in a case. As such, these parties should shoulder the expenses incurred in referring to the Hansard.

The opponents of relying on Hansard in court argue that perusing and printing out the parliamentary records is a costly process. While the aspect of increased costs is a reality, the extent to which these opponents portray is untrue. Presently, these records are available on the internet, owing to modern technology. As such, they can be accessed through keyword searches. This strategy makes its retrieval much easier compared to the situation in the past. Hence, while the “excessive cost” argument may have been sustained at the time of Peper v Hart (1992) 1 UKHL 3, the scenario is different today. Similarly, the argument that accessing these records is time-consuming cannot be true in the internet times. Conversely, the Hansard is a readily available aid to statutory interpretation that facilitates courts with the expeditious dispensation of cases. Again, as Magyar (2012) points out, opponents may argue that electronic records do not cover the entire Hansard. While this argument is true, the reality of legislation is that statutory interpretation is usually required for laws that have been passed much recently during the internet era. These records can be traced with limited costs and time, hence serving to promote the rapid dispensation of justice in courts.

Have the Courts found the Hansard a Useful Guide to the Interpretation of Statutes?

The question of whether the English courts find the Hansard a useful guide in their interpretation of statutes cannot possibly be answered with a simple yes or no. Instead, it requires consideration to be made of major factors relevant to the debate regarding the usefulness of the Hansard as an extraneous aid to statutory interpretation. As observed earlier, the rule in Peper v Hart (1992) 1 UKHL 3 allowed a narrow opportunity for the reliance on the Hansard. Hence, according to Bartie and Gava (2012), instances are few in which the parliamentary records find their way to the courts. However, as rare these instances might be, some feel that explanatory notes from the parliament should not have to be used in the courts. One of the many excuses advanced by this group of legal scholars is that they diminish the independence of the judiciary. Others opine that relying on the Hansard presents various benefits.

One of the benefits achieved by relying on the Hansard is its capacity to eliminate the ambiguity found in some laws. As evidenced in the Peper v Hart (1992) 1 UKHL 3 case, the court found it useful to have to seek guidance from the Hansard on the rationale behind a tax law. The house of lords was faced with the task of deciding whether a private school teacher was required to pay tax where his pay had been derived from decreased school fees. Because the Act was unclear, further guidance had to be sought from the lawmakers who then opined that it was not the intention of the minister (at the time of drafting the law) to include the teacher as a taxpayer under the law. This instance, which gave way to the exclusionary rule, is one of the numerous scenarios where the court has benefited from the Hansard when dealing with absurd legislations.

Based on Melluish v BMI (No. 3) (1996) 1 AC 454 case, relying on the Hansard assists the court to observe and/or act in line with the intention of the parliament. According to Davis (2012), while the principle of separation of powers recognizes the three arms of government as equal, the parliament represents the will of the people because members of the legislative body are directly elected by the people to represent their wishes in the government. At the same time, the court’s role is to ensure that the existing legislation is interpreted in the best interest of the people. Hence, by observing the will of the parliament, the courts are being sensitive to the wishes of the people. Further, this sensitivity enforces the supremacy of the parliament. In other words, the responsibility of the parliament as the sole lawmaker in the UK is emphasized.

Notwithstanding, relying on the Hansard impedes the usual way in which courts hear and determine cases. As Lord Mackay suggested in Peper v Hart (1992) 1 UKHL 3, reference to the Hansard only allows prolonged examination of unnecessary material by lawyers. As a result, Dharmananda and Firios (2015) assert that valuable court time is wasted, thus leading to the backlog of cases. At the same time, the court is forced to invest in this unnecessary exercise with little or no benefit realized. Furthermore, according to Goldswain (2012), a reference to the Hansard in itself denies courts the opportunity to exercise its independence from both the executive and the parliament. Finally, according to Anderson (2014), the recourse to the Hansard encourages bias over the objectivity that courts are associated with because the process involves considering different opinions based on political parties by the elected parliamentarians. As such, little or no benefit is realized from the reliance on parliamentary records.

Conclusion

Recourse to the Hansard by the English courts is seen as both beneficial and unnecessary. Opponents believe that it prolongs the court process while also increasing the cost of litigation. Additionally, it is contended that having to refer to the parliamentary records diminishes the role of courts to act as independent interpreters of laws. On the other hand, proponents believe that relying on the Hansard assists the court to consider the true intent of the parliament regarding the legislation in question, hence promoting parliamentary supremacy.

Reference List

Anderson, J 2014, ‘Misreading like a lawyer: a cognitive bias in statutory interpretation’, Harvard Law Review, vol. 127, no. 6, pp. 1522-1592.

Bartie, S & Gava, J 2012, ‘Some problems with extrajudicial writing’, Sydney L. Rev., Web.

Bell, E 2013, ‘Judicial perspectives on statutory interpretation’, Commonwealth Law Bulletin, vol. 39, no. 2, pp. 245-281.

Costelloe, S 2015, ‘The need for conditions limiting the use of legislative history in statutory interpretation: lessons from the British courts’, Notre Dame JL Ethics & Pub., Web.

Davis v Johnson (1978) 2 WLR 21.

Davis, F 2012, ‘Parliamentary supremacy and the re-invigoration of institutional dialogue in the UK’, Parliamentary Affairs, vol. 67, no. 1, pp. 137-150.

Dharmananda, J & Firios, L 2015, Interpreting statutes and contracts: a distinction without a difference?. Web.

Goldswain, G 2012, ‘Hanged by a comma, groping in the dark and holy cows-fingerprinting the judicial aids used in the interpretation of fiscal statutes’, Southern African Business Review, vol. 16, no. 3, pp. 30-56.

Jha, K 2012, Examining the current importance of Pepper v. Hart. Web.

Magyar, J 2012, ‘The evolution of Hansard use at the Supreme Court of Canada: a comparative study in statutory interpretation’, Statute Law Review, vol. 33, no. 3, pp. 363-389.

Melluish v BMI (No. 3) (1996) 1 AC 454.

Peper v Hart (1992) 1 UKHL 3.

Seidenfeld, M 2013, ‘A process failure theory of statutory interpretation’, William & Mary Law Review, vol. 56, no. 2, pp. 467-530.

Thilakarathna, A 2017, The use of the Hansard in the UK and Sri-Lanka; a comparative analysis. Web.

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