Law Quarterly Review 2005 Pepper vs Hart and Matters of Constitutional Principle Aileen Kavanagh - Coursework Example

Summary - Law Quarterly Review 2005 Pepper v Hart and matters of constitutional principle Aileen Kavanagh Introduction Pepper v. Hart became a subject of intense debate even before the dust had settled on the decision. Lord Steyn an eminent jurist criticized the Court for allowing Hansard (correctly titled as the Official Report), called for a narrow interpretation of the decision and advocated limiting it to cases of executive estoppel. Over the years the impact of the decision has been whittled down however use of Hansard has increased. As an English Lawyer the position has obviously changed as every lawyer would like to be on the safer side of law by referring to the Hansard when construction of a statute is in question. However, the question is how fruitful such referencing can be when English Courts have since tried to strictly construe the conditions laid down. A practical objection against allowing Hansard put forward by the dissenting justice Lord Mackay was the expense both in terms of time and money it will add to litigation. Over the years consulting Hansard has become easier due to advancement in technology. However it is the principled objection put forward by many commentators which deserve attention. Pepper v Hart seems to confuse the statement made by a minister or promoter of the bill with the intention of the legislature. A lot has been written on the subject and therefore a review of the available literature will be provided in the paper. However, in order to properly appreciate the decision in Pepper v. Hart and its effect it is important to understand the nature of parliamentary privilege which exists in England as it is the source of the controversy which surrounds the rule. Furthermore, the exclusionary rule derived from the said privilege also has to be properly reviewed in order to appreciate the departure finished in Pepper v. Hart. Therefore, this paper would provide an overview of these two related aspects of law in order to analyze the crosscurrents that run through all of them. Namely, what constitutes the proper guide in order to construe the intention of the legislature while construing a statute where the interpretation of the provisions results in ambiguity, obscurity or leads to a result which is absurd and cannot be attributed to legislature. The task of any court becomes quite difficult in such a situation as it has to give effect to the statute under consideration and therefore Pepper v. Hart can be seen as one attempt of the Court to solve this conundrum. Parliamentary Privilege and Pepper v. Hart Issue of Parliamentary Privilege has been of utmost importance in the English judicial system. Summary A closely associated issue is the right of both Houses of Parliament to have privacy of debate and therefore control on the publication of reports on parliamentary proceedings. In 1840 the Parliamentary Papers Act laid down the position observing among other things that for no restrictions should exist on publication of such reports as the Houses of Parliament deem fit for proper discharge of their functions. The general principle regarding referencing of Hansard reports was set out in a House of Commons Resolution in 1980 which gave leave for reference to be made in future court proceedings to the Official Report of Debates. However, as Bennion notes leave was given only for reference to be made to the debates and it did not give authorization for discussion or argument about what was “said in the debates. This represents the essential breach between the pre- and post Pepper v. Hart position in law. Concerned with the decision and in order to formulate a via media which respects the Parliamentary Privilege and also gives effect to the decision of the Court the Clerk of the House of Commons suggested that where the court is of opinion that in particular circumstances a questioning of the proceedings of the House is required a leave should be sought by way of petition and if the leave was granted no question of breach of Parliamentary Privilege will arise. This formality becomes all the more crucial when seen in light of Article of Bill of Rights which provides that the debates or proceedings in parliament ought not to be impeached or questioned in any court (Kavanagh 90). As Bennion notes the judicial position before Pepper v. Hart respected this tradition and held that whatever is done within the walls of either assembly must pass without question in any other place. As late as 1983 the courts held that in order to consider a certain statement made in the House the court would have to consider what was the meaning of the statement and what inferences can be drawn from it, such an exercise would be in contravention of Article of the Bill of Rights. Since in order to appreciate the utility of any statement and its relevance to the provisions being construed a court must engage in interpretation of the statement itself which would by definition amount to questioning of the statement, such a reference to Hansard reports will be in violation of Article 99, though the judges in Pepper v. Hart argued otherwise. Lord Browne-Wilkinson showed faith in the astuteness of judges to ensure that minister’s statement is not impugned or criticized in any manner. Further, he construed any place in Article 9 to mean comments made even in media or other forums and therefore argued that it would be impracticable to interpret prohibition on questioning in such a wide manner, which as Bennion correctly points out fails to apply the principle of ejusdem generis to Article 9 which would limit the word place to a place similar to court such as tribunals or other official forums. The crucial issue that must be addressed at this juncture is the need for ‘comity13 between the Houses of Parliament and the Courts (Kavanagh 50). Commentators have pointed out that from a constitutional viewpoint in order to safeguard comity between the two branches actual proceedings of the Parliament should not be subject to discussion or criticism either by bench or by counsel.14 As a result of Pepper v. Hart, Joint Committee on Parliamentary Privilege invited evidence on the issue of codification of Privileges of both House in 1999 in which Bennion submitted that wider meaning of Article 9 of the Bill of Rights should be made applicable while drafting the code which would have the effect of considerably reducing of not abolishing the effect of the decision. The effect of Pepper v. Hart on Parliamentary Privilege is twofold. Firstly it, serves to undermine the traditional and well-reasoned doctrine that allusion to Parliamentary proceedings by referencing Hansard reports should not result in question and criticism of the Parliament. Secondly it may substitute intention of legislature by the statement. Hence, Parliamentary Privilege constitutes a major challenge to Pepper v. Hart. Exclusionary Rule and Pepper v. Hart Exclusionary Rule is a necessary corollary to the Literal Rule which holds that words in a statute should be given their plain, ordinary and natural meaning in order to provide legal certainty and honor the central role of Parliament. It is a rule of practice which provides that recourse to reports of proceedings in either Houses of Parliament is not a permissible aid to construction unless the courts while exercising their residuary rights allow it to carry out the intention of the legislature.18A historical overview of the lawmaking process suggests that for centuries the law was declared rather than made19 as judicial and legislative powers were fused in the early English system. Eventually, statutes became the most important source of law and their interpretation became a crucial issue while determining cases based on such statutes. According to the literal rule the text of the statute is the paramount document while attempting such interpretation and therefore a reference to parliamentary proceedings in the nature of Hansard reports would amount to admission of Parole evidence. Other rationales supporting exclusionary rule hold that apart from breaching parliamentary privilege and comity between the two branches such a practice would result in imposing extra costs on the parties and difficulties on the practitioners while undermining the reliability of statute. Though the rule has not been consistently applied and has been considerably relaxed after the decision in Pepper v. Hart it nevertheless stands rooted in the judicial policy and legislative acquiescence of at least a century. Many authorities have expressed concern that inclusion of parliamentary history may lead to an assumption the statute does not mean what it says or such a practice may result in ascribing to the court an unsupported duty to ascertain not only the intention of the Parliament but also the intention of the Minister or Promoter of the bill whose statement is being referred. Relaxation of Exclusionary Rule has been opposed on the grounds that to take the opinion of the Minister as to the intended meaning of the provision which has to be construed would result in inhibiting the law. Efforts to relax the exclusionary rule at least with respect to judges were spearheaded by Lord Denning in a number of cases in which he argued that there is nothing to prevent a judge looking at the debates and getting some guidance while dubbing his opponents as purists. He argued that literal method was completely out of date even though his position was not supported by the House of Lords (Kavanagh, 98). However; gradually the practice of peeking was acknowledged as widespread among judges though it was opposed as being unfair to the parties who had no opportunity to make submissions on the basis of such materials. The gradual trend appeared to be in favor of relaxing the exclusionary rule altogether. Work Cited Kavanagh, Aileen, Pepper v Hart and Matters of Constitutional Principle, Law Quarterly Review, Volume 121, January 2005, 98. Read More