||Doc. No. 1964.001
Use of Hansard and other legislative
history in statutory interpretation
Introductory Note by Francis Bennion
The following is a copy of an official
Memorandum (“the Memorandum”)
which I wrote in 1964. It relates to clause 8 of a Bill drafted by Professor
Andrew Martin, who was later appointed one of the first members of the Law
Commission set up by the Law Commissions Act 1965. This Act was drafted
by the late Sir Noël Hutton, and I was its assistant draftsman. Martin
was co-editor with Gerald Gardiner QC (later Lord Chancellor) of the influential
book Law Reform NOW. This book, sponsored by the Society of Labour
Lawyers, proposed the setting up of a body of Law Commissioners to carry
I was reminded of having written the Memorandum by a passage in Law,
Law Reform and the Family by Stephen Cretney. This describes clause 8 as follows:
‘Further evidence of the dominant role intended for the [Law] Commission
was provided by a clause in Martin’s draft which would have required courts to have regard to memoranda to be published by the Lord Chancellor
explaining the policy underlying each public general Act. This last proposal
was too much for Gardiner, who noted that it would effectively give the
Executive power to dictate to the courts the [legal] meaning of legislation.’
At this point a lengthy footnote is inserted by Cretney, part of which reads
‘The Lord Chancellor’s officials discussed the proposal with the First
Parliamentary Counsel, Sir Noel [sic] Hutton. He considered that
the provision was “very interesting”; but repeated the objection
(already made by Gardiner) that it seemed difficult to allow Parliament
to pass an
Act and “then proceed to tell them what they have done”; and
he also pointed out that the American practice (on which Martin had relied)
had evolved over a long period of time: Hutton to Coldstream, 4 Nov. 1964.
Hutton got “one of the particularly able people in his office, Francis
Bennion” to draft a paper, and the result (dated 17 Dec. 1964 )
is both erudite and interesting. Coldstream eventually minuted Gardiner: ‘At
the official level it has been suggested that this question as a whole might
be referred to the Law Commission for consideration. They would certainly
have an opportunity of making a comparative study of the attitudes of Commonwealth
and foreign courts to this problem. But in any event I would not advise
you to introduce a Bill with a clause of this kind in it unless you had
first given the Judges, particularly the Law Lords, a very full opportunity
of considering the implications.” This suggestion was adopted; and
the Law Commissions eventually published a Report on the Interpretation
of Statutes (Law Com. No. 21, Scot. Law Com. No. 11, 1969). But change — of
a radical and controversial nature — was brought about by judicial
rather than legislative means: Pepper (Inspector of Taxes) v. Hart 
AC 593, HL (critically analysed by F. Bennion, Second Cumulative Supplement (1995) to Statutory
Interpretation (2nd. edn. 1992) Section 217 ).
The copy of the Memorandum reproduced below came into my possession in 2006
through the courtesy of a senior Government official. It was accompanied
by a copy of a letter dated 9 February 1966 from Sir Noël Hutton to
Sir George Coldstream, Permanent Secretary to the Lord Chancellor. This
'Law Reform: Interpretation
Many thanks for your letter of 8th February enclosing the copy of Francis
Bennion’s Note and of your letter to Norman Marsh. I thought the Note
was first rate when I first read it, and it seems even better on a second
acquaintance. The draft also looks pretty sound subject perhaps to the question
which I raised before whether it might not be preferable to say that the
court may "take notice".'
In response to an enquiry from me Professor Cretney said:
‘I saw the files in the LCD office in Victoria. The reference was 3697A/3.
At the time the Departmental Records Officer was Enid Smith, and she was
very helpful. I do not know why the papers had not been transferred to the
PRO, or indeed whether they have since been lodged there. If so it should
be possible to locate them under The National Archives catalogue classification
BC3. But I am not sure whether the papers dealing with the setting up of
a body are perhaps filed under the parent’s reference. Unless you
are expert in dealing with the NA catalogue it might be sensible to start
with the DCA Records Officer.’
Unpublished Memorandum dated 19 November 1964 by Francis Bennion, Deputy
Parliamentary Counsel, to Sir Noël Hutton, First Parliamentary Counsel,
Parliamentary Counsel Office, 36 Whitehall, London SW1.
Sir Noël Hutton
Law Reform (Miscellaneous Provisions) Bill
You asked me to comment generally on clause 8 of the Bill, allowing the
courts to look at legislative history as an aid to interpretation. In its
latest form the clause runs as follows:-
Interpretation of public general Acts.
8.- (1) As soon as possible after the publication of any public general
Bill the Lord Chancellor shall lay before each House of Parliament a memorandum
explaining the Bill and the purposes which it is intended to serve.
(2) In interpreting and applying any public general Act a court shall have
regard to any memorandum with respect thereto laid before Parliament under
the last preceding subsection and may have regard to any Bill in Parliament
for that Act and any explanatory memorandum associated with such Bill and
the official reports of debates in Parliament on any such Bill and any report
relevant to that Act of the Law Commission or of any Royal Commission or
other body appointed by Her Majesty’s Government to enquire into and
report on any particular branches of the Law.
The present law
“In order properly to interpret any statute it is as necessary now as
it was when Lord Coke reported Heydon’s Case to consider how
the law stood when the statute to be construed was passed, what the mischief
for which the old law did not provide, and the remedy provided by the statute
to cure that mischief”.
This is a useful starting point, though it over-simplifies in assuming that
every statute is passed to cure a “mischief”. One might put
it that the court to do its job properly will often need to consider, in
addition to the Act itself, the situation (both legal and factual) existing
when the Act was passed; and what it was in that situation which needed
to be dealt with by legislation. To consider these things it must be able
to find out about them, and it can probably do so in any way it thinks fit.
Thus it can look at a statement as to the previous law made by the Lord
Chancellor or a law officer during debates on the Bill and
it can probably look at a statement made in Parliament as to the facts on
which the Bill
was based. Again
it can look at findings of law or fact in the report of a committee available
when the Bill was passed.
What the court cannot do is to refer to such sources in order to discover
the way in which Parliament intended by the Act to deal with the legal and
factual situation. This is I think clearly established, though there are
many instances to the contrary, e.g. Cave J:
“The Act of 1875 was not intended to increase the stringency of the
law. It was preceded by a Royal Commission which recommended a relaxation
“Where the meaning of an Act is doubtful we are, I think, at liberty
to recur to the circumstances under which it passed into law,”
going on to cite speeches showing the intention of Parliament.
A remarkable recent instance was the statement by the Court of Criminal
Appeal that although section 44 of the Criminal Justice Act 1948 imposed
no limit on the power conferred by it to award costs, the power should be
used only in exceptional cases, adding that “a reference to Hansard
. . . shows that this is in accordance with what the Attorney General stated
in Parliament was the intention of the clause when it was being considered
in committee”. It
is more accurate perhaps to say that the court cannot be seen to refer to
the sources of the Act for this purpose. With,
Act the legislative history may be common knowledge, and the judge will
have it in mind all along. Or counsel may bring it to his attention obliquely
by making it part of his argument. Or
the judge may use the speech of a minister as a convenient summary of the
object of the Act, or a journal
entry as an illustration. In any event it may be assumed, as an American
commentator has remarked, that if a judge thinks it important to do so he
will find some opportunity of looking up the legislative history, and unless
his sympathies are strongly the other way he will in cases of ambiguity,
endeavour to conform to it.
Reasons for the present rule
I have found no case which enters at any length into the reasons for the
rule that Parliament’s intention must be gathered solely from the
Act itself. The following general reasons have been given by the courts
1. An Act is a written instrument, to be construed like any other. The rules
restricting recourse to extrinsic evidence of the intention of a testator,
covenantor etc. have therefore been applied to legislation.
2. To confine the meaning to that indicated by preparatory work would cramp
the expanding interpretation of an Act to meet later developments.
3. The rule prevents uncertainty, since otherwise an Act could not be relied
on without an exhaustive search of preparatory work which may not be easily
available and may include mutually conflicting statements (in some continental
countries official copies of statutes are published together with a dossier
of legislative history materials).
The following reasons have been given for excluding reference to proceedings
1. “The history of previous changes made or discussed [in Parliament]
cannot be taken to have been known or to have been in view when the Royal
assent was given”. This hardly holds water now that the rules against
reporting debates have been lifted.
2. A statute is made by the three constituent bodies of Parliament and what
is said by a member of one cannot show the intention of the others - or
even of that one, since the views may not be those of the majority. The
courts have refused to recognise a resolution of one house only as having
the force of law. It is not surprising therefore, says Lauterpacht, “that
isolated expressions of opinion during the debate are not admissible as
an element of interpretation”.
3. “. . . they would be quite untrustworthy in any case. In the case
of an Act dealing with a controversial subject ambiguous phrases are often
4. The rejection of Parliamentary history is an assertion of judicial freedom
from Parliamentary control.
The main reason given for not referring to the recommendations of a Royal
Commission or similar body is that “it does not follow that their
recommendations were accepted”. “Indeed,
if we were allowed to draw any inference from the comparison between the
language of the report
and that of the legislature, the more legal inference would be, that the
marked distinction, observable between the two, could not have been the
result of accident, but must have been advised and intentional”.
These reasons can be summed up by saying that the courts consider any guidance
to Parliament’s intention not contained in the Act itself to be untrustworthy
and therefore of little value. “It is clear that the language of a
Minister of the Crown in proposing in Parliament a measure which eventually
becomes law is inadmissible and the Report of Commissioners is even more
removed from value as evidence of intention”.
The United States courts have in theory the same rules about recourse to
legislative history as ours, but there has in recent years been a widespread
relaxation of the rules, and many law libraries now prepare legislative
history dossiers of all important Acts for consultation by practitioners.
One comment on this change is of interest for this country:
“It is obvious that the Court has grown in its understanding of the
ways of Congress, and without an understanding of how a legislative body goes
about making its decisions it is indeed difficult for a judge to determine
what is the will of that legislative body”.
The main source to which the courts look is the reports of the committee
in charge of the Bill, which normally has a voluminous treatment of the
reasons and objects.
A useful summary of the modern practice in the United States is the following:
“Of the various types of legislative materials, the legislative history
of an act, that is amendments made or rejected in the course of its passage
through the legislature, and formal committee reports, are freely used in
interpretation, subject only to the vagaries of the plain meaning rule and
to the requirements of relevancy. Debates on the floor of the legislature
were formerly completely excluded, and such is a common statement of the
present rule. This rule was first modified to permit the consideration of
statements by the committee chairman or member in charge of the bill on
the floor of the house. Many cases, particularly the more recent, have declared
that it excludes the use of debates to explain the meaning of words, but
allows their use to show the purpose of the act and the evils sought to
be remedied. This exception would seem practically to engulf the original
rule; and debates apparently are now employed, at least in the federal courts,
in so far as they are of probative value.”
On the continent legislative history is admissible, though Lauterpacht says: “it
is a mistake to overrate its importance. . . it is not a source of law;
it serves to interpret the law”.
Canada follows the English rule, though a law professor there has recently
argued that it is “more a counsel of caution than a canon of construction” and
urged his courts to be bolder. Australia and New Zealand I believe are
the same. Ghana as we know has a licence to use legislative history (but
not debates in Parliament) conferred by its Interpretation Act. I have not
found any other instances of a positive enactment to this effect.
The proposed change
If the courts are now told by Parliament that they can look at the legislative
history of an Act what effect will this have? To begin with, will it alter
the court’s decision where the meaning of the Act is clear, but clearly
not what Parliament intended? There have been many instances where the court
has known perfectly well that its decision was contrary to the intention
of the legislature, but has found the wording of the Act unambiguous and
so given effect to it. A well-known example is Richards v. McBride. The commencement section of the Sunday Closing (Wales) Act 1881 provided
it to come into operation in each Welsh division or place “on the
day next appointed for the holding of the general annual licensing meeting
for that division or place.” Lopes J. said “I cannot doubt that
it was the intention of the legislature that the Act should come into operation
throughout Wales during the present year”, i.e. at the next annual
licensing meeting in each division or place. The literal meaning of “next
appointed” led the court to hold however that where the next date
had been appointed before the passing of the Act the Act would not come
into force in that division or place until the following, year, i.e. on
the date next to be appointed. The court’s knowledge of Parliament’s
true intention was gathered from extraneous sources and so could not be
Another instance is Ayrshire Employers Mutual Insurance v. C.I.R. Here it was quite obvious that the only purpose of a Finance Act section
reverse decisions holding that the surplus on transactions of a mutual insurance
company with its members was not taxable. The section operated however merely
by deeming the transactions to have been with non-members, and this was
held by the House of Lords insufficient to raise a charge to tax, since “it
is not membership or non-membership which determines immunity from or liability
to tax, it is the nature of the transactions”. Lord MacMillan said:
“The Attorney-General with engaging candour submitted that he ought
to succeed because, although the subsection might not in terms fit the case,
nevertheless manifest that Parliament must have intended to cover it; if
it did not cover it, then he could not figure any case which it could cover
and Parliament must be presumed to have intended to effect something . .
. The Legislature has plainly missed fire. Its failure is perhaps less regrettable
than it might have been, for the subsection has not the meritorious object
of preventing evasion of taxation, but the less laudable design of subjecting
to tax as profit what the law has consistently and emphatically declared
not to be profit.”
Then there is the casus omissus. The authorities on this are, as
Craies puts it,numerous
and unanimous. The language of an Act must not be extended
to meet a case which is clearly unprovided for, however obvious it may be
that Parliament intended to cover it. Thus, to take a recent example, the
court declined to hold that a prohibition on offering flick-knives for sale
in the Restriction of Offensive Weapons Act 1961 extended to their display
in a shop window . Suppose in this case counsel for the prosecution had
been able to produce a statement by the private member in charge of the
Bill assuring the standing committee that the prohibition did cover exposure
in a shop window. Under the new provision the court would be able to look
at this. Would it be entitled, or indeed bound, then to act on it and convict
the accused? In all such cases, where the meaning of the Act is clear, but
it is also clear that Parliament is in the predicament that “quod
voluit, non dixit”, it is ineffective merely to tell the court
that it may look at the legislative history, for this will add nothing to
court’s knowledge. The question is whether it is intended by this
new provision to produce the opposite result in cases such as those just
cited. If it is, the provision needs to be worded after this fashion: “Where
the court finds from the legislative history that the meaning of the words
used in the Act is contrary to that intended by Parliament, it shall disregard
the words used and give effect to Parliament’s intention.” Otherwise
it needs to be made clear that the new provision applies only where the
wording of the Act is ambiguous, a limitation which so far as I can discover
applies in all countries where resort can be had to legislative history.
A new rule merely allowing the court to look at legislative history would
avoid the problems discussed above if it were confined to cases of ambiguity.
But even so limited the rule might give rise to difficulty where the present
law raises a presumption in aid of resolving the ambiguity. There are of
course many such presumptions, some of greater force than others. Examples
are that an Act is presumed not to operate retrospectively except in matters
of procedure, not to alter the jurisdiction of the courts, not to operate
extra-territorially and not to bind the Crown. Akin to these are rules requiring
strict construction of Acts imposing penalties, or affecting private property,
or levying taxation. There is also the presumption that Parliament has not
erred in its framing of legislation.
The difficulty would be that the new rule would give no indication to the
court of how heavily knowledge gleaned from legislative history was to weigh
against a presumption raised by the present law. Take for example R.
v. Chapman, where the question was whether a man charged with unlawful
carnal knowledge whose age was 23½ when the act was committed, could
claim the benefit of a defence applying in the case of a man “of twenty-three
years or under”. The question turned on whether a person was “of
twenty-three years” only on his twenty-third birthday or from then
until his twenty-fourth birthday. The court held that the Act was ambiguous,
and decided the case on the principle that in such cases “the benefit
of the doubt should be given to the subject and against the Legislature
which has failed to explain itself”. But suppose the new rule had
been in operation and the Minister introducing the Bill had said “this
defence will be available to young men until their twenty-third birthday.” Would
the court then have been obliged to convict? Would it make any difference
if the words had been uttered on the spur of the moment in answer to an
interjection, perhaps qualified by “I think” or “I would
say”, or if they had been those of a law officer saying “It
will be for the court to decide, but this is my opinion”?
Variations in Hansard
A minor point, perhaps worth mentioning, is that members have a right to
edit their speeches for publication in Hansard. A Minister’s hasty
reply in answer to an interjection might take one form as spoken, another
when edited by his private secretary for the daily Hansard, and yet a third
when appearing in the bound volume. Although opposing counsel are unlikely
to get hold of conflicting versions, there will be a heavy responsibility
on those concerned with making Hansard corrections.
A memorandum of the kind proposed in the original draft was suggested by
Prof. Harold Laski in an addendum to the Donoughmore Report, though he
contemplated that it would consist of the usual explanatory memorandum on
the Bill as introduced revised by the Department to take account of amendments
to the Bill.
The draft leaves the scope and detail of the memorandum at large, and this
must be right. A full explanation of a long and complex Act would be of
book-length, and in some ways would be more difficult and time-consuming
to draft than the Act itself. Even a short Act can call for a good many
words if it is to be properly explained. However the draft does not require
the memorandum to go to these lengths and in practice it would no doubt
be something like an edited version of the Minister’s second reading
The width of the draft comfortably leaves open the question whether the
memorandum for a consolidation Act would deal with the substance of the
Act or merely explain the consolidation, no doubt with tables of comparison.
The difficulties arising from the fact that the court is merely required
or authorised to “have regard” to legislative history have been
discussed above. Other points are as follows.
The draft is confined to public general Acts, but it is not clear why this
should be so. The case for having recourse to legislative history seems
to apply equally to private Acts though
possibly there is a desire not to disturb the rule that “in this Court
we do not regard what may be called private bargains made in committee rooms”. To exclude private Bills might cast doubt on the limited right which the
to look at legislative history. In R. v. Manchester Corporation, for
example, the court based its decision on the fact that a clause had been
on the petition of a person not named in it, since the fact of the petition
was on record. Statutory instruments may also have a public history - for
example the explanatory note, and speeches in Parliament on an affirmative
or negative resolution.
To say that the court shall have regard to the explanatory memorandum seems
to give it a status equal to the Act itself or any other law. This would
create obvious difficulties where the memorandum contained a statement which
the court found to be inconsistent with the clear meaning of the Act. If
it is meant not to give the memorandum the force of law, but to compel the
judge to read it every time a provision of the Act (however plain or familiar)
comes before him it seems to go too far.
The draft proceeds to list what are to be the legitimate sources of the
legislative history, but the list is inevitably incomplete and in places
too wide. An obvious omission, in the case of consolidation Acts, is a reference
to materials relating to the Acts consolidated. Other materials that it
might be proper for a court to look at are: a treaty or convention (where
the Act enables it to be ratified - see the Performers’ Protection
Act 1963 (c.53) where section 1 embodies the actual words of the convention),
a white paper foreshadowing a Bill (which may not be an “explanatory
memorandum associated with it”), House journals and order papers (which
include material, e.g. amendments not moved, which are not recorded in Hansard),
reports of select committees, the joint committee on consolidation bills,
etc. (the reports are not “official reports of debates”, and
the committees are not “appointed by H.M. Government”).
The list goes too wide in the following respects. An “explanatory
memorandum associated with such Bill” is not required to have an official
origin and could therefore include one produced by a body such as the Association
of Municipal Corporations (at least where that body was promoting the Bill)
or even one produced by an academic or professional commentator, which is
presumably not the intention of the draftsman. Any “report relevant
to that Act. . .” is not limited to reports leading up to the enactment
of the Bill, but would include reports in the nature of commentaries drawn
up after its enactment. These would not be part of the legislative history
and could be consulted, in the same way as textbooks and other commentaries,
without aid from this clause. On the other hand it is presumably not intended
to alter the rule preventing recourse to practice notes issued by the government
department administering the Act. Clause
9 is expressed not to apply to Northern Ireland but
there should it seems be a common standard of interpretation
of United Kingdom Acts wherever they extend. There is a question of how
far, if at all, the clause should apply to Acts passed before its commencement.
Where these laws come before the courts on the old basis there is an obvious
danger of post-Bill decisions being different, or of difficulty arising
about how far previous decisions are still binding.
The following is drafted on the assumption that the new rule is only to
apply where there is an ambiguity in the Act as drawn, and is intended to
avoid the other difficulties mentioned above. It does not attempt to exclude
any particular materials, on the view that the court can safely be left
to select only materials that in the particular case give trustworthy evidence
of Parliament’s intention. The concluding words of subsection (l)
are designed to show that if the materials looked at resolve the doubt any
presumption of law applicable in the case of such a doubt is displaced.
Interpretation in the light of legislative history.
(1) Where in applying any Act a court is in doubt as to the intention of
Parliament as expressed in the Act, the court may have recourse to any materials
originating before the passing of the Act which appear to it to throw light
on that intention, including reports of proceedings in Parliament, documents
presented to or laid before Parliament, and any other relevant materials;
and if in the opinion of the court those materials resolve the doubt the
court shall apply the Act accordingly.
(2) This section shall not affect the construction of any Act passed before
the commencement of this Act, or of any Act passed thereafter in so far
as the Act re-enacts provisions originally enacted before that commencement.
(3) For the purpose of construing any provision of an Act this section shall
extend to every country or territory to which that provision extends.
[F A R Bennion]
Press, Oxford, 1998.
footnote here reads: ‘The courts were also to be expressly permitted to have
regard to Law Commission
or Royal Commission reports’.
date differs slightly from that on the copy of the memorandum reproduced below
and seems to be a
now Bennion on Statutory Interpretation (5th edn, 2008) pp. 627-632. See
got it wrong in Pepper v. Hart’ and other writings specified on that document.
cit., p. 6, footnote 37. I wrote an article condemning the draft clauses annexed
to Law Com No.
21: see ‘Another reverse for the Law Commission’s Interpretation
New Law Journal,
13 August 1981. The draft clauses, which did not permit reference
to Hansard, were never enacted.
M.R., Re Mayfair Property Co. .2 Ch. 28, 35.
v Bishop of Oxford 4 Q.B.D. 525, 535.
R. v Board of Education  2 K.B. 1045, 1072, Lord Alverstone C.J. reserved
his opinion on this,
while appearing sympathetic.
Dean of York 114 E.R. 15; Eastman v Comptroller of Patents  A.C. 573; Assam
Rlys v C.I.R.  A.C. 445, 457; Ladore v Bennett  A.C. 468, 477; Pillai
v Mudanayake  A.C. 514, 528.
cases cited in Halsbury’s Laws Vol. 36, p. 410, note (a).
v Kent  2 Q.B. 545, 551.
Rly v Rly. Cmrs. 5 Q.B.D. 217, 236.
Note  W.N. 175. See also In re Castioni  1 Q.B. 149, 153, 155; Fellows
v Clay 114 E.R. 932-4; Salkeld v Johnson 135
v Hemming 156 E.R. 529; In re Castioni  1 Q.B. 149, 153.
in Lumsden v C.I.R..  A.C. 877, 908.
in Viscountess Rhondda’s Claim  2 A.C. 339, 399.
See Llewellyn Davies, 35 Columbia L.R. 522.
Lauterpacht, 48 Harv. L.R. 558.
Haldane in Viscountess Rhondda’s Claim  A.C. 339, 383, following a
dictum of Willes J. in 1769 that changes made to a Bill in one House were “not
known to the other House or to the sovereign ”.
v Hansard 9 A. & E. 1; Bowles v Bank of England  1 Ch. 57.
L.J. in R. v West Riding C.C.  2 K.B. 676, 716.
Rlys v C. I. R.  A.C. 445, 457.
v Johnson 135 E.R. 1114.
Rlys v C.I.R..  A.C. 445, 458.
Cited 35 Columbia L.R.531.
Harvard L.R.824 (anonymous note).
Harvard L.R.. 551.
Canadian Bar Rev. 769, 1087.
v. Bell  1 Q.B.394.
2 K.B. 606.
of Committee on Ministers’ Powers 1932 (Cmd.4060), Annex V.
The Perpetuities and Accumulations Act 1961 consists of eight pages, but explaining
it, admittedly with some criticism thrown in, occupies
fifty pages of the current Law Quarterly Review.
Herron v. Rathmiries  A.C.498; Davis v. Taff Vale Rly  A.C.542; Steele
v Midland Rly (1866) L.R. 1 Ch.275.
Alverstone C.J. in R. v. Manchester Corpn.  1 K.B.560, 563.
footnote 34 above.
v. Central Land Board  1 W.L.R. 1296 - “their use might well result
in the court being influenced by official opinion ”.