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LAW / Statutory Interpretation by Csanad Kormos


Statutory Interpretation In General | Literal Rule | Golden & Mischief Rule | The Purposive Approach/The Contextual Approach | Hansard


Hansard has been officially used (judges used it before this case unofficially) since the case of Pepper v. Hart, in which the question was whether the taxable benefit of providing the children of teachers with free education should be taxed at the nominal extra cost to the school, or at the normal cost of the school's fees. It was decided using Hansard that it should be taxed at the lower cost.

In this case it was said that if Hansard "clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words", then it is an admissible aid to construction.

However, it was said that "I cannot foresee any statement other than the statement of the minister or other promoter of the Bill is likely to meet the criteria".

In addition it was said that "if a minister clearly states the effect of a provision and there is no subsequent relevant amendment to the Bill or withdrawal of the statement it is reasonable to assume that Parliament passed the Bill on the basis the provision would have the stated effect".

Pepper v. Hart means that the will of Parliament will more frequently be followed, thus reinforcing parliamentary supremacy.

However, it the inevitable result is increased costs as more research is conducted into Hansard and other sources.

Hansard is, of course, not binding on the courts - there is no reason why they should not ignore the intent of Parliament unless it is expressed in a statute. Hansard has the same legal status as any other interpretative aid.

The question arises whether Pepper v. Hart affects stare decisis, that is to say whether a court can overrule an otherwise binding case on the basis of Hansard showing that the previous construction was wrong. If this question were to be answered in the affirmative, magistrates courts could overrule the House of Lords.

Common sense might suggest that incorrect interpretations should be overruled, but there is the issue of separation of powers - according to the traditional doctrine of the separation of powers the judiciary must be free to reject the Hansard material, since it is nothing more than an interpretative aid, which were it to be binding, would make Parliament both legislator and interpretor: legislation has traditionally been seen as an abstract document not tailored to particular situtations, but rather being a list of abstract principles interpreted and applied in individual cases by the judiciary. Taken this way, to give Hansard such as status would apparently contravene HA Hayek's conception of the rule of law.

On the other hand it seems rather futile for Parliament to make laws if the courts are not going to enforce them according to its intention.

Csanad Kormos, London Metropolitan University, United Kingdom, 2005