Legislation and Ministers' Parliamentary Speeches (Hansard, 8 December 1993)

§ The Lord Advocate (Lord Rodger of Earlsferry)
My Lords, I confirm that the law as enacted by Parliament is contained in the text of any statute. The only change made in the recent case of Pepper v. Hart was to permit the courts to use certain parliamentary materials "as an aid to the construction of legislation" in particular circumstances.

§ Lord Renton
My Lords, I thank my noble and learned friend for that partly encouraging reply. May I remind him that the use of ministerial statements in order to supplement Acts of Parliament is a dangerous practice, and that it points to the need for our spending more time and exercising more care in order to achieve clarity, not only as to detail but as to the principles covering that detail? Will the Government be taking steps to overcome the decision in Pepper v. Hart in due course?

§ Lord Rodger of Earlsferry
My Lords, it is well known that the distinguished committee over which my noble friend presided came out against the introduction of any such rule as that in Pepper v. Hart. The formulation in Pepper v. Hart nonetheless does stress that what is required at all times is to ascertain the intention of Parliament and to ascertain it from the interpretation of the words. All that is now permitted is to go some way and use certain parliamentary materials the better to try to ascertain what that intention was. I of course accept that it will be necessary at all times for the parliamentary draftsmen to continue to strive so far as possible to encapsulate the desired policy in the wording of the statute and to make that as accurate as possible.

Lord Bruce of Donington
My Lords, is the noble and learned Lord aware that the matter is even further complicated by the incorporation of European legislation into British law? Does he agree that, in view of the growing ambiguities, preambles and recitals ad infinitum in the European legislation, the situation becomes more and more difficult and makes decisions much more a matter of conjecture than logical argument?

§ Lord Rodger of Earlsferry
My Lords, over the past few years the courts in this country have become to a certain extent used to handling European legislation and to adopting the kind of criteria for interpretation which that legislation requires. They also enjoy the very great advantage that in the last resort the Court of Justice in Luxembourg can provide a final answer on any matter of interpretation.

§ Lord Hailsham of Saint Marylebone
My Lords, I acknowledge that the original Answer was legally correct, but would my noble and learned friend confirm that the facts in Pepper v. Hart were quite peculiar? Is it not the fact that in truth the words of the statute were capable of two meanings and that the Government argued against the meaning which their own Minister had given to Parliament in explanation of the statute when the point was raised? Does he agree that it was rather a peculiar thing to do?

§ Lord Rodger of Earlsferry
My Lords, as so often my noble and learned friend has put his finger very 944 accurately on the spot. It was indeed a rather unusual case. Perhaps that explains why their Lordships found it a convenient case to adopt the argument which they did.

§ Lord Lester of Herne Hill
My Lords, I plead guilty to being the successful advocate in Pepper v. Hart. Would my learned friend, the noble and learned Lord the Lord Advocate, confirm that nothing in that decision suggests that the courts are a mere reflecting mirror of what Ministers say during the passage of legislation? Also, does he agree that now it is important that Hansard should be much more widely available to the public at large?

§ Lord Rodger of Earlsferry
My Lords, it was the case that the eloquent argument of the noble Lord was the argument that prevailed. It is important that Hansard should be available. It is also important to notice, as I understand was stressed in the argument presented to the Judicial Committee of this House, that what is trying to be ascertained at all times is the meaning of the words in the legislation. I believe that that was the way in which the argument was presented.

§ Lord Gisborough
My Lords, if that decision should result in Bills having more and more of the i's dotted, can the noble and learned Lord tell the House how that will fit in with the oft repeated request that Bills should go toward the intention rather than include every single detail?

§ Lord Rodger of Earlsferry
My Lords, it is always desirable in a Bill that the appropriate amount of detail should be included. What is required in all cases is a formulation which is precise enough to encapsulate the intention of Parliament in the matter.

§ Lord Stoddart of Swindon
My Lords, is the noble and learned Lord aware that I am delighted to hear him say that Hansard should be more readily and widely available? Would he pass that sentiment on to his colleagues and advise them that Hansard has been raised in price since 1979 from 49p to £7.50p? In the light of his feelings about this matter, will he therefore recommend to them that the cost of Hansard be brought down very considerably and that a free copy be sent to every public library in the country?

§ Lord Rodger of Earlsferry
My Lords, the noble Lord raised the matter in this House not so long ago. In this context we are concerned that it should be available in particular to those lawyers and such who have to advise clients in these matters.

§ Lord Renton
My Lords, is my noble and learned friend aware that, however unusual the circumstances of Pepper v. Hart, that case established a precedent for referring to Hansard which is bound to increase the length and cost of all court work? Will he bear that in mind in considering my earlier request that the Government should take steps to overcome that decision?

§ Lord Rodger of Earlsferry
My Lords, it will be appropriate to see how the decision works out in practice. There is obviously a risk, which was stressed 945 by my noble and learned friend the Lord Chancellor in the course of his speech on that case, that there will indeed be an increase in the length of proceedings. It is also fair to point out that one other noble and learned Lord indicated that in an appropriate case the use of an award of costs could be used to penalise any misuse of the new principle.

Lord Archer of Sand well
My Lords, may I invite the noble and learned Lord to elaborate a little on his answer to the noble and learned Lord, Lord Hailsham? Will he confirm, as we would expect, that he himself will do everything possible to discourage government departments and public authorities from invoking legislation against the citizen in a sense contrary to explanations and undertakings given to Parliament during the legislative process? Does he agree that the best way to minimise problems arising from the construction of ambiguous legislation is for governments not to introduce legislation until it has been carefully thought through and drafted?

§ Lord Rodger of Earlsferry
My Lords, I am happy to confirm to the noble and learned Lord that it is clearly undesirable for the Government to find themselves arguing against the spirit in which the legislation was brought before Parliament. For the rest, I confirm that it is always desirable that the policies should be thought out and encapsulated in appropriate words.