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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
    1. Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723
    2. Case of the Sheriff of Middlesex (1840) 11 Ad & E 273
    3. Bradlaugh v Gossett (1884) 12 QBD. 271
    4. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
    5. R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195
    6. R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93
    7. Hamilton v Al Fayed [1999] 3 All ER 317
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42

LORD MACKAY OF CLASHFERN LC:.....But much wider issues than the construction of the Finance Act 1976 have been raised in these appeals and for the first time this House has been asked to consider a detailed argument on the extent to which reference can properly be made before a court of law in the United Kingdom to proceedings in Parliament recorded in Hansard.

For the taxpayers Mr Lester QC submits that it should now be appropriate for the courts to look at Hansard in order to ascertain the intention of the legislators as expressed in the proceedings on the Bill which has then been enacted in the statutory words requiring to be construed. This submission appears to me to suggest a way of making more effective proceedings in Parliament by allowing the court to consider what has been said in Parliament as an aid to resolving an ambiguity which may well have become apparent only as a result of the attempt to apply the enacted words to a particular case. It does not seem to me that this can involve any impeachment, or questioning, of the freedom of speech and debates or proceedings in Parliament; accordingly I do not see how such a use of Hansard can possibly be thought to infringe s 1, art 9 of the Bill of Rights (1688) and I agree with my noble and learned friend's more detailed consideration of that matter.

The principal difficulty I have on this aspect of the case is that in Mr Lester's submission reference to parliamentary material as an aid to interpretation of a statutory provision should be allowed only with leave of the court and where the court is satisfied that such a reference is justifiable (a) to confirm the meaning of a provision as conveyed by the text, its object and purpose, (b) to determine a meaning where the provision is ambiguous or obscure or (c) to determine the meaning where the ordinary meaning is manifestly absurd or unreasonable.

I believe that practically every question of statutory construction that comes before the courts will involve an argument that the case falls under one or more of these three heads. It follows that the parties' legal advisers will require to study Hansard in practically every such case to see whether or not there is any help to be gained from it. I believe this is an objection of real substance. It is a practical objection, not one of principle, and I believe that it was the fundamental reason that Lord Reid, for example, considered the general rule to be a good one as he said in the passage my noble and learned friend has cited from Beswick v Beswick [1967] 2 All ER 1197 at 1202, [1968] AC 58 at 74. Lord Reid's statement is, I think, worthy of particular weight since he was a parliamentarian of great experience as well as a very distinguished judicial member of your Lordships' House. It is significant that in the following year, in his dissenting speech in Warner v Metropolitan Police Comr [1968] 2 All ER 356 at 366(367, [1969] 2 AC 256 at 279, he, while agreeing with the general rule, was prepared to consider an exception from it although the time was not right to do so. But the exception he contemplated was in respect of a particular type of statute, namely a statute creating criminal liability in which the question was whether or not a guilty intention was required to create liability. Now that type of exception would mean that the practical difficulties to which he referred would not arise except in the comparatively few cases that arise of the particular type. The submission which Mr Lester makes on the other hand is not restricted by reference to the type of statute and indeed the only way in which it could be discovered whether help was to be given is by considering Hansard itself. Such an approach appears to me to involve the possibility at least of an immense increase in the cost of litigation in which statutory construction is involved. It is of course easy to overestimate such cost but it is I fear equally easy to underestimate it. Your Lordships have no machinery from which any estimate of such cost could be derived. Two inquiries with such machinery available to them, namely that of the Law Commission and the Scottish Law Commission, in their joint report on Interpretation of Statutes (Law Com no 21; Scot Law Com no 11(1969)), and the Renton Committee report on Preparation of Legislation (Cmnd 6053 (1975)) advised against a relaxation on the practical grounds to which I have referred. I consider that nothing has been laid before your Lordships to justify the view that their advice based on this objection was incorrect.

In his very helpful and full submissions Mr Lester has pointed out that there is no evidence of practical difficulties in the jurisdictions where relaxations of this kind have already been allowed, but I do not consider that, full as these researches have been, they justify the view that no substantial increase resulted in the cost of litigation as a result of these relaxations, and, in any event, the parliamentary processes in these jurisdictions are different in quite material respects from those in the United Kingdom.

Your Lordships are well aware that the costs of litigation are a subject of general public concern and I personally would not wish to be a party to changing a well established rule which could have a substantial effect in increasing these costs against the advice of the Law Commissions and the Renton Committee unless and until a new inquiry demonstrated that that advice was no longer valid.

I do not for my part find the objections in principle to be strong and I would certainly be prepared to agree the rule should no longer be adhered to were it not for the practical consideration to which I have referred and which my noble and learned friend agrees to be of real substance. Reference to proceedings in Parliament has already been allowed in Pickstone v Freemans plc [1988] 2 All ER 803, [1989] AC 66 without, I think, any argument on whether or not it was permissible for ascertaining the purpose of subordinate legislation and also in other cases for ascertaining the purpose for which a power to make subordinate legislation was used. I believe that such statements are likely to be readily identified in parliamentary proceedings and the cases in which they are relevant will be determined by the nature of the subject matter. Allowing reference to Hansard in such cases does not have the large practical consequences to which I have referred. If reference to parliamentary material is permitted as an aid to the construction of legislation which is ambiguous, or obscure or the literal meaning of which leads to an absurdity, I believe as I have said that in practically every case it will be incumbent on those preparing the argument to examine the whole proceedings on the Bill in question in both Houses of Parliament. Questions of construction may be involved on what is said in Parliament and I cannot see how if the rule is modified in this way the parties' legal advisers could properly come to court without having looked to see whether there was anything in the Hansard report on the Bill which could assist their case. If they found a passage which they thought had a bearing on the issue in this case, that passage would have to be construed in the light of the proceedings as a whole. I fully appreciate and feel the force of the narrowness of the distinctions which are taken between what is admissible and what is not admissible, but the exception presently proposed is so extensive that I do not feel able to support it in the present state of our knowledge of its practical results in this jurisdiction. For these reasons, I agree that these appeals should be allowed, although I cannot agree on the main issue for the discussion of which this further hearing was arranged.

LORD GRIFFITHS. My Lords, I have long thought that the time had come to change the self-imposed judicial rule that forbade any reference to the legislative history of an enactment as an aid to its interpretation. The ever-increasing volume of legislation must inevitably result in ambiguities of statutory language which are not perceived at the time the legislation is enacted. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. 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 on the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament.....

LORD BROWNE-WILKINSON:....The case was originally argued before a committee of five of your Lordships without reference to any parliamentary proceedings. After the conclusion of the first hearing, it came to your Lordships' attention that an examination of the proceedings in Parliament in 1976 which led to the enactment of ss 61 and 63 of the 1976 Act might give a clear indication which of the two rival contentions represented the intention of Parliament in using the statutory words. Your Lordships then invited the parties to consider whether they wished to present further argument on the question whether it was appropriate for the House (under Note [1966] 3 All ER 77, [1966] 1 WLR 1234) to depart from previous authority of this House which forbids reference to such material in construing statutory provisions and, if so, what guidance such material provided in deciding the present appeal. The taxpayers indicated that they wished to present further argument on these points. The case was listed for rehearing before a committee of seven members not all of whom sat on the original committee.

At the start of the further hearing, the Attorney General, who appeared for the Crown, drew our attention to a letter addressed to him by the Clerk of the House of Commons suggesting that any reference to Hansard for the purpose of construing the 1976 Act might breach the privileges of that House. Until 31 October 1980 the House of Commons took the view that any reference to Hansard in court proceedings would constitute a breach of its privileges and required a petition for leave to use Hansard to be presented in each case. On 31 October 1980 the House of Commons resolved as follows:

"That this House, while re-affirming the status of proceedings in Parliament confirmed by article 9 of the Bill of Rights, gives leave for reference to be made in future court proceedings to the Official Report of Debates and to the published Reports and evidence of Committees in any case in which, under the practice of the House, it is required that a petition for leave should be presented and that the practice of presenting petitions for leave to refer to Parliamentary papers be discontinued".

The letter of 5 June 1992 from the Clerk of the House of Commons starts by saying:

"My attention has been drawn to the fact that the House of Lords may be asked to hear argument in this case based on the meaning or significance of words spoken during proceedings on a Bill in the House of Commons".

The letter then sets out the text of the resolution of 31 October 1980, and continues:

In my opinion, the use proposed for the Official Report of Debates in this case is beyond the meaning of the 'reference' contemplated in the Resolution of October 1980. If a court were minded in particular circumstances to permit the questioning of the proceedings of the House in the way proposed, it would be proper for the leave of the House to be sought first by way of petition so that, if leave were granted, no question would arise of the House regarding its Privileges as having been breached.

The reference in that letter to 'questioning' the proceedings of the House of Commons plainly raised the issue whether the proposed use of parliamentary materials without the leave of the House of Commons would breach s1, art 9 of the Bill of Rights, which provides:

That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

The Attorney General, while submitting that such use of parliamentary material would breach art 9, accepted that it was for the courts to determine the legal meaning and effect of art 9. However, the Attorney General warned your Lordships that, even if reference in this case to parliamentary materials did not infringe art 9, the House of Commons might take the view the House enjoyed some wider privilege which we would be infringing and might well regret that its views on the point had not been sought before a decision was reached by your Lordships. Whilst strictly maintaining the privileges of the House of Commons, the Attorney General used the parliamentary materials in this case as an illustration of the dangers of so doing. Moreover, in order to assist us, whilst still maintaining the privileges of the House of Commons, he made submissions as to the effect of such material on the construction of s 63 if, contrary to his contentions and advice, we decided this appeal with the assistance of such material.

In the result, the following issues arise. (1) Should the existing rule prohibiting any reference to Hansard in construing legislation be relaxed and, if so, to what extent? (2) If so, does this case fall within the category of cases where reference to parliamentary proceedings should be permitted? (3) If reference to parliamentary proceedings is permissible, what is the true construction of the statutory provisions? (4) If reference to the parliamentary proceedings is not permissible, what is the true construction of the statutory provisions? (5) If the outcome of this case depends on whether or not reference is made to Hansard, how should the matter proceed in the face of the warnings of the Attorney General that such references might constitute a breach of parliamentary privilege?....

1. SHOULD THE RULE PROHIBITING REFERENCES TO PARLIAMENTARY PRIVILEGE BE RELAXED?

Under present law, there is a general rule that references to parliamentary material as an aid to statutory construction is not permissible (the exclusionary rule) (see Davis v Johnson [1978] 1 All ER 1132, [1979] AC 264 and Hadmor Productions Ltd v Hamilton [1981] 2 All ER 724, [1983] 1 AC 191). This rule did not always apply but was judge-made. Thus, in Ash v Abdy (1678) 3 Swan 664, 36 ER 1014 Lord Nottingham LC took judicial notice of his own experience when introducing the Bill in the House of Lords. The exclusionary rule was probably first stated by Willes J in Millar v Taylor (1769) 4 Burr 2303 at 2332, 98 ER 201 at 217. However, Re Mew and Thorne (1862) 31 LJ Bcy 87 shows that even in the middle of the last century the rule was not absolute: in that case Lord Westbury LC in construing an Act had regard to its parliamentary history and drew an inference as to Parliament's intention in passing the legislation from the making of an amendment striking out certain words.

The exclusionary rule was later extended so as to prohibit the court from looking even at reports made by commissioners on which legislation was based (see Salkeld v Johnson (1848) 2 Exch 256 at 273, 154 ER 487 at 495). This rule has now been relaxed so as to permit reports of commissioners, including Law Commissioners, and white papers to be looked at for the purpose solely of ascertaining the mischief which the statute is intended to cure but not for the purpose of discovering the meaning of the words used by Parliament to effect such cure..... Indeed, in Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692, [1990] 2 AC 85 your Lordships' House went further than this and had regard to a Law Commission report not only for the purpose of ascertaining the mischief but also for the purpose of drawing an inference as to parliamentary intention from the fact that Parliament had not expressly implemented one of the Law Commission's recommendations.

Although the courts' attitude to reports leading to legislation has varied, until recently there was no modern case in which the court had looked at parliamentary debates as an aid to construction. However, in Pickstone v Freemans plc [1988] 2 All ER 803, [1989] AC 66 this House, in construing a statutory instrument, did have regard to what was said by the minister who initiated the debate on the regulations. Lord Keith after pointing out that the draft regulations were not capable of being amended when presented to Parliament, said that it was "entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft was presented by the responsible minister and which formed the basis of its acceptance" (see [1988] 2 All ER 803 at 807, [1989] AC 66 at 112). Lord Templeman also referred to the minister's speech, although possibly only by way of support for a conclusion he had reached on other grounds (see [1988] 2 All ER 803 at 814, [1989] AC 66 at 121(122). Lord Brandon and Lord Jauncey agreed with both those speeches. This case therefore represents a major inroad on the exclusionary rule (see also Owens Bank Ltd v Bracco [1992] 2 All ER 193, [1992] 2 AC 443).....

In Beswick v Beswick [1967] 2 All ER 1197 at 1202, [1968] AC 58 at 74 Lord Reid said:

"For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in select committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court".

In Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] All ER 810 at 814(815, [1975] AC 591 at 613(615 Lord Reid said:

"We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. I have more than once drawn attention to the practical difficulties but the difficulty goes deeper. The questions which give rise to debate are rarely those which later have to be decided by the courts. One might take the views of the promoters of a Bill as an indication of the intention of Parliament but any view the promoters may have had about questions which later come before the court will not often appear in Hansard and often those questions have never occurred to the promoters. At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said. In my view, our best course is to adhere to present practice".

In the same case Lord Wilberforce said ([1975] 1 All ER 810 at 828, [1975] AC 591 at 629):

"The second [reason] is one of constitutional principle. Legislation in England is passed by Parliament, and put in the form of written words. This legislation is given legal effect on subjects by virtue of judicial decision, and it is the function of the courts to say what the application of the words used to particular cases or individuals is to be ( it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say".

In Fothergill v Monarch Airlines Ltd [1980] 2 All ER 696 at 705, [1981] AC 251 at 279 Lord Diplock said:

"The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining 'the intention of Parliament'; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state. Elementary justice or the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible".

In Davis v Johnson [1978] 1 All ER 1132 at 1157, [1979] AC 264 at 350 Lord Scarman said:

"such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, the essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of parliamentary and ministerial utterances can confuse by its very size".

Thus the reasons put forward for the present rule are, first, that it preserves the constitutional proprieties, leaving Parliament to legislate in words and the courts (not parliamentary speakers) to construe the meaning of the words finally enacted, second, the practical difficulty of the expense of researching parliamentary material which would arise if the material could be looked at, third the need for the citizen to have access to a known defined text which regulates his legal rights and, fourth, the improbability of finding helpful guidance from Hansard.

The Law Commissions of England and Scotland in their joint report on Interpretation of Statutes (Law Com no 21; Scot Law Com no 11 (1969)) and the Renton Committee on Preparation of Legislation (Cmnd 6053 (1975)) both recognised that there was much to be said in principle for relaxing the rule but advised against a relaxation at present on the same practical grounds as are reflected in the authorities. However, both bodies recommended changes in the form of legislation which would, if implemented, have assisted the court in its search for the true parliamentary intention in using the statutory words.

Mr Lester submitted that the time has come to relax the rule to the extent which I have mentioned. He points out that the courts have departed from the old literal approach of statutory construction and now adopt a purposive approach, seeking to discover the parliamentary intention lying behind the words used and construing the legislation so as to give effect to, rather than thwart, the intentions of Parliament. Where the words used by Parliament are obscure or ambiguous, the parliamentary material may throw considerable light not only on the mischief which the Act was designed to remedy but also on the purpose of the legislation and its anticipated effect. If there are statements by the minister or other promoter of the Bill, these may throw as much light on the 'mischief' which the Bill seeks to remedy as do the white papers, reports of official committees and Law Commission reports to which the courts already have regard for that purpose. 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 that the provision would have the effect stated. There is no logical distinction between the use of ministerial statements introducing subordinate legislation (to which recourse was had in Pickstone's case and such statements made in relation to other statutory provisions which are not in fact subsequently amended. Other common law jurisdictions have abandoned the rule without adverse consequences. Although the practical reasons for the rule (difficulty in getting access to parliamentary materials and the cost and delay in researching it) are not without substance, they can be greatly exaggerated: experience in Commonwealth countries which have abandoned the rule does not suggest that the drawbacks are substantial, provided that the court keeps a tight control on the circumstances in which references to parliamentary material are allowed.

On the other side, the Attorney General submitted that the existing rule had a sound constitutional and practical basis. If statements by ministers as to the intent or effect of an Act were allowed to prevail, this would contravene the constitutional rule that Parliament is sovereign only in respect of what it expresses by the words used in the legislation it has passed (see the Black-Clawson case [1975] 1 All ER 810 at 836, per Lord Diplock). It is for the courts alone to construe such legislation. It may be unwise to attach importance to ministerial explanations which are made to satisfy the political requirements of persuasion and debate, often under pressure of time and business. Moreover, in order to establish the significance to be attached to any particular statement, it is necessary both to consider and to understand the context in which it was made. For the courts to have regard to parliamentary material might necessitate changes in parliamentary procedures to ensure that ministerial statements are sufficiently detailed to be taken into account. In addition, there are all the practical difficulties as to the accessibility of parliamentary material, the cost of researching it and the use of court time in analysing it, which are good reasons for maintaining the rule. Finally, to use what is said in Parliament for the purpose of construing legislation would be a breach of s 1, art 9 of the Bill of Rights as being an impeachment or questioning of the freedom of speech in debates in proceedings in Parliament.

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 (subject to strict safeguards) 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....

[M]y main reason for reaching this conclusion is based on principle. Statute law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court's duty in so doing to give effect to the intention of Parliament in using those words. It is an inescapable fact that, despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous. One of the reasons for such ambiguity is that the members of the legislature in enacting the statutory provision may have been told what result those words are intended to achieve. Faced with a given set of words which are capable of conveying that meaning it is not surprising if the words are accepted as having that meaning. Parliament never intends to enact an ambiguity. Contrast with that the position of the courts. The courts are faced simply with a set of words which are in fact capable of bearing two meanings. The courts are ignorant of the underlying parliamentary purpose. Unless something in other parts of the legislation discloses such purpose, the courts are forced to adopt one of the two possible meanings using highly technical rules of construction. In many, I suspect most, cases references to parliamentary materials will not throw any light on the matter. But in a few cases it may emerge that the very question was considered by Parliament in passing the legislation. Why in such a case should the courts blind themselves to a clear indication of what Parliament intended in using those words? The court cannot attach a meaning to words which they cannot bear, but if the words are capable of bearing more than one meaning why should not Parliament's true intention be enforced rather than thwarted?

A number of other factors support this view. As I have said, the courts can now look at white papers and official reports for the purpose of finding the 'mischief' sought to be corrected, although not at draft clauses or proposals for the remedying of such mischief. A ministerial statement made in Parliament is an equally authoritative source of such information; why should the courts be cut off from this source of information as to the mischief aimed at? In any event, the distinction between looking at reports to identify the mischief aimed at but not to find the intention of Parliament in enacting the legislation is highly artificial. Take the normal Law Commission report which analyses the problem and then annexes a draft Bill to remedy it. It is now permissible to look at the report to find the mischief and at the draft Bill to see that a provision in the draft was not included in the legislation enacted (see Factortame v Secretary of State for Transport [1989] 2 All ER 692, [1990] 2 AC 85). There can be no logical distinction between that case and looking at the draft Bill to see that the statute as enacted reproduced, often in the same words, the provision in the Law Commission's draft. Given the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature, the fine distinctions between looking for the mischief and looking for the intention in using words to provide the remedy are technical and inappropriate. Clear and unambiguous statements made by ministers in Parliament are as much the background to the enactment of legislation as white papers and parliamentary reports.

The decision in Pickstone v Freemans plc which authorises the court to look at ministerial statements made in introducing regulations which could not be amended by Parliament is logically indistinguishable from such statements made in introducing a statutory provision which, though capable of amendment, was not in fact amended.

The judicial antipathy to relaxing the rule has been far from uniform. Lord Reid, who in the passage I have quoted from the Black-Clawson case supported the maintenance of the rule, in his dissenting speech in Warner v Metropolitan Police Comr [1968] 2 All ER 356 at 367, [1969] 2 AC 256 at 279 said:

"the layman may well wonder why we do not consult the Parliamentary debates for we are much more likely to find the intention of Parliament there than anywhere else. The rule is firmly established that we may not look at Hansard, and in general I agree with it for reasons which I gave last year in Beswick v Beswick). This is not a suitable case in which to reopen the matter, but I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other".....

Textbooks often include reference to explanations of legislation given by a minister in Parliament, as a result of which lawyers advise their clients taking account of such statements and judges when construing the legislation come to know of them. In addition, a number of distinguished judges have admitted to breaching the exclusionary rule and looking at Hansard in order to seek the intention of Parliament. When this happens, the parties do not know and have no opportunity to address the judge on the matter. A vivid example of this occurred in Hadmor Productions Ltd v Hamilton [1981] 2 All ER 724, [1983] 1 AC 191, CA; [1982] 1 All ER 1042, [1983] 1 AC 191, where Lord Denning MR in the Court of Appeal relied on his own researches into Hansard in reaching his conclusions; in the House of Lords, counsel protested that there were other passages to which he would have wished to draw the court's attention had he known that Lord Denning MR was looking at Hansard (see [1982] 1 All ER 1042 at 1056, [1983] 1 AC 191 at 233). It cannot be right for such information to be available, by a sidewind, for the court but the parties be prevented from presenting their arguments on such material.

Against these considerations, there have to be weighed the practical and constitutional matters urged by the Attorney General, many of which have been relied on in the past in the courts in upholding the exclusionary rule. I will first consider the practical difficulties.

It is said that parliamentary materials are not readily available to, and understandable by, the citizen and his lawyers, who should be entitled to rely on the words of Parliament alone to discover his position. It is undoubtedly true that Hansard and particularly records of committee debates are not widely held by libraries outside London and that the lack of satisfactory indexing of committee stages makes it difficult to trace the passage of a clause after it is redrafted or renumbered. But such practical difficulties can easily be overstated. It is possible to obtain parliamentary materials and it is possible to trace the history. The problem is one of expense and effort in doing so, not the availability of the material. In considering the right of the individual to know the law by simply looking at legislation, it is a fallacy to start from the position that all legislation is available in a readily understandable form in any event: the very large number of statutory instruments made every year are not available in an indexed form for well over a year after they have been passed. Yet, the practitioner manages to deal with the problem, albeit at considerable expense. Moreover, experience in New Zealand and Australia (where the strict rule has been relaxed for some years) has not shown that the non-availability of materials has raised these practical problems.

Next, it is said that lawyers and judges are not familiar with parliamentary procedures and will therefore have difficulty in giving proper weight to the parliamentary materials. Although, of course, lawyers do not have the same experience of these matters as members of the legislature, they are not wholly ignorant of them. If, as I think, significance should only be attached to the clear statements made by a minister or other promoter of the Bill, the difficulty of knowing what weight to attach to such statements is not overwhelming. In the present case, there were numerous statements of view by members in the course of the debate which plainly do not throw any light on the true construction of s 63. What is persuasive in this case is a consistent series of answers given by the minister, after opportunities for taking advice from his officials, all of which point the same way and which were not withdrawn or varied prior to the enactment of the Bill.

Then it is said that court time will be taken up by considering a mass of parliamentary material and long arguments about its significance, thereby increasing the expense of litigation. In my judgment, though the introduction of further admissible material will inevitably involve some increase in the use of time, this will not be significant as long as courts insist that parliamentary material should only be introduced in the limited cases I have mentioned and where such material contains a clear indication from the minister of the mischief aimed at, or the nature of the cure intended, by the legislation. Attempts to introduce material which does not satisfy those tests should be met by orders for costs made against those who have improperly introduced the material. Experience in the United States of America, where legislative history has for many years been much more generally admissible than I am now suggesting, shows how important it is to maintain strict control over the use of such material. That position is to be contrasted with what has happened in New Zealand and Australia (which have relaxed the rule to approximately the extent that I favour): there is no evidence of any complaints of this nature coming from those countries.

There is one further practical objection which, in my view, has real substance. If the rule is relaxed legal advisers faced with an ambiguous statutory provision may feel that they have to research the materials to see whether they yield the crock of gold, ie a clear indication of Parliament's intentions. In very many cases the crock of gold will not be discovered and the expenditure on the research wasted. This is a real objection to changing the rule. However, again it is easy to overestimate the cost of such research: if a reading of Hansard shows that there is nothing of significance said by the minister in relation to the clause in question, further research will become pointless.

In sum, I do not think that the practical difficulties arising from a limited relaxation of the rule are sufficient to outweigh the basic need for the courts to give effect to the words enacted by Parliament in the sense that they were intended by Parliament to bear. Courts are frequently criticised for their failure to do that. This failure is due not to cussedness but to ignorance of what Parliament intended by the obscure words of the legislation. The courts should not deny themselves the light which parliamentary materials may shed on the meaning of the words Parliament has used and thereby risk subjecting the individual to a law which Parliament never intended to enact.

Is there, then, any constitutional objection to a relaxation of the rule? The main constitutional ground urged by the Attorney General is that the use of such material will infringe s 1, art 9 of the Bill of Rights as being a questioning in any court of freedom of speech and debates in Parliament. As I understood the submission, the Attorney General was not contending that the use of parliamentary material by the courts for the purposes of construction would constitute an 'impeachment' of freedom of speech since impeachment is limited to cases where a member of Parliament is sought to be made liable, either in criminal or civil proceedings, for what he has said in Parliament, eg by criminal prosecution, by action for libel or by seeking to prove malice on the basis of such words. The submission was that the use of Hansard for the purpose of construing an Act would constitute a 'questioning' of the freedom of speech or debate. The process, it is said, would involve an investigation of what the minister meant by the words he used and would inhibit the minister in what he says by attaching legislative effect to his words. This, it was submitted, constituted 'questioning' the freedom of speech or debate.

Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But, even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word 'question' which the Attorney General urges. It must be remembered that art 9 prohibits questioning not only 'in any court' but also in any 'place out of Parliament'. If the Attorney General's submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute 'questioning' since all members of Parliament must speak and act taking into account what political commentators and others will say. Plainly art 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence members in what they say.

In my judgment, the plain meaning of art 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.

Moreover, the Attorney General's contentions are inconsistent with the practice which has now continued over a number of years in cases of judicial review. In such cases, Hansard has frequently been referred to with a view to ascertaining whether a statutory power has been improperly exercised for an alien purpose or in a wholly unreasonable manner. In Brind v Secretary of State for the Home Dept [1991]1 All ER 720, [1991] 1 AC 696 it was the Crown which invited the court to look at Hansard to show that the minister in that case had acted correctly (see [1991] 1 AC 696 at 741). This House attached importance to what the minister had said). The Attorney General accepted that references to Hansard for the purposes of judicial review litigation did not infringe art 9. Yet reference for the purposes of judicial review and for the purposes of construction are indistinguishable. In both types of case, the minister's words are considered and taken into account by the court; in both, the use of such words by the courts might affect what is said in Parliament.

As to the authorities, in Church of Scientology of California v Johnson-Smith [1972] 1 All ER 378, [1972] 1 QB 522 the plaintiff sued the defendant, a member of Parliament, for an alleged libel on television and sought to introduce evidence of what the defendant had said in the House of Commons as proof of malice. Browne J held, rightly in my view, that such use would breach art 9 as questioning the motives and intentions of a member of the House. To the extent that he went further so as to suggest that in no circumstances could the speeches be looked at other than for the purposes of seeing what was said on a particular date, his remarks have to be understood in the context of the issues which arose in that case. Those issues included an allegation that the defendant acted improperly in Parliament in saying what he did in Parliament. That plainly would amount to questioning a member's behaviour in Parliament and infringe art 9....

Accordingly in my judgment the use of clear ministerial statements by the court as a guide to the construction of ambiguous legislation would not contravene art 9. No doubt all judges will be astute to ensure that counsel does not in any way impugn or criticise the minister's statements or his reasoning.

The Attorney General raised a further constitutional point, namely that for the court to use parliamentary material in construing legislation would be to confuse the respective roles of Parliament as the maker of law and the courts as the interpreter. I am not impressed by this argument. The law, as I have said, is to be found in the words in which Parliament has enacted. It is for the courts to interpret those words so as to give effect to that purpose. The question is whether, in addition to other aids to the construction of statutory words, the courts should have regard to a further source. Recourse is already had to white papers and official reports not because they determine the meaning of the statutory words but because they assist the court to make its own determination. I can see no constitutional impropriety in this.

Finally on this aspect of the case, the Attorney General relied on considerations of comity: the relaxation of the rule would have a direct effect on the rights and privileges of Parliament. To the extent that such rights and privileges are to be found in the Bill of Rights, in my judgment they will not be infringed for the reasons which I have given.....

I therefore reach the conclusion, subject to any question of parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to parliamentary materials where: (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear. Further than this, I would not at present go.