R H S Tur Weeks 1 and 2 MT 2000 Th 12 and F 9 (Gulbenkian)


General Introductory Points

(a) Nature and sources of law:

(b) Statute

(c) Precedent

A General

(i) volume

(ii) contested meaning

(iii) styles of drafting

(iv) assumptions of drafting

B Preparation and scrutiny

(i) Parliamentary counsel

(ii) Main steps in drafting

(iii) Formal stages

C Post-enactment scrutiny (and review?)

(i) The judicial role in general

(ii) ECHR

D Application and interpretation

(i) Canons of interpretation

(ii) Letter of the law cf purpose and value

(iii) Example: making and applying the Forfeiture Act 1982

(iv) Example: codification and the criminal law (Bourne, Kelly, Marsh, B v DPP)


E Endnote on legislative history and bridge from lectures on Statutes to lectures on Precedent

(i) Before Pepper v Hart (eg L Diplock and L Denning in Hadmor)

(ii) Pepper v Hart (NB L Mackay's dissent)

(iii) After Pepper v Hart

Statute and Precedent as Precept and Example (Hart and Dworkin)

"Guidance by example" generates "indeterminacies of a more complex kind"

Hart's three pairs of contrasting facts:

(i) No single mode of determining the rule of a case. Yet mostly there is little doubt.

(ii) No uniquely correct formulation of the rule of a case. Yet mostly there is general agreement.

(iii) However fixed or settled precedents may be, courts can and do both widen and narrow them.

An example: Morgan cf Turner

Rationes and obiter dicta.

Fixed Rules?

(i) Ex parte Campbell

(ii) Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

Common Law Thinking

(a) illogicality and obscurity;

(b) unfairness and retrospectivity

(c) conservative and timid.

Radical Judges? (e.g, Murphy, Denning, Kirby)

R v Governor of Brockhill Prison ex p Evans

Derbyshire County Council v Times Newspapers

R v Secretary of State for Home Department ex parte McQuillan;

R v Cambridgeshire Health Authority ex parte B

R v Lambert; R v Ali; R v Jordan



Miers & Page, Legislation (2nd edn., 1990), passim

Lord Denning, The Discipline of Law (1979) pp 4 - 22

Hart, The Concept of Law (2nd edn., 1994) pp 124 - 141

Dworkin, Law's Empire ( 1986) Ch 9

Merryman, "Certainty and Equity", in The Civil Law Tradition (1969) Ch VIII, pp 50 - 58

Zander, The Law Making Process (4th edn., 1994) pp 139 - 159

Smith, Justification and Excuse in the Criminal Law (1989) pp 5 - 6


Lord Reid, "The Judge as Law Maker" (1972-73) 12 J S P T L (N S) 22 - 29

Lord Mackay,"The Drafting of Government Bills Affecting the Law of Scotland" (1983) Statute Law Review 68-75

Katz, M. "After the Deconstruction: Law in the Age of Post-Structuralism" (1986) 24 University of Western Ontario Law Review 51-66

Millet T, "A Comparison of British and French Legislative Drafting" (1986) Statute Law Review 130

Cretney, S. "The Forfeiture Act, 1982: the Private members's Bill as an Instrument of Law Reform" (1990) 10 Oxford Journal of Legal Studies 289 - 306.

Styles, Scott C, "The Rule of Parliament: Statutory Interpretation after Pepper v Hart" (1994) 14 Oxford Journal of Legal Studies 151-158


Riggs v Palmer 115 NY 506, 22 NE 188 (1889)

Tennessee Valley Authority v Hill 437 US 153 (1978)

R v Bourne [1939] KB 687

Lloyds Bank v Bundy [1974] 3 All ER 757

Ohlson v Hylton [1975] 2 All ER 490

Davis v Johnson [1979] AC 264

Hadmore Productions v Hamilton [1983 1 AC 191, 201 (per L Denning); 232-233 (per L Diplock)

R v NIC ex parte Conner [1981] 1 All E R 769

MPC v Caldwell [1982] AC 341

In re K (dec'd) [1985] 1 Ch 85

Re Cross [1987] SCLR 356

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

R v Kelly [1993] Crim L R 763

R v Marsh (William) [1997] 1 Cr App R 67

Burstow & Ireland [1997] 3 WLR 534

B v DPP [2000] 1 All ER 833


Offences Against the Person Act, 1861 (sections 18,20,47, and section 58)

Prevention of Crimes Act, 1953 (section 1)

Indecency With Children Act 1960 (section 1(1))

Abortion Act, 1967 (section 5(2))

Theft Act, 1968 (sections 9 and 10)

Criminal Damage Act, 1971

Forfeiture Act, 1982

Aggravated Vehicle-Taking Act, 1992

Theft (Amendment) Act, 1996 (See Law Commission's 31st Annual Report (for 1996); No 244, section 4.1 to 4.4)



Tennyson, Aylmer's Field

Sam Walter Foss, The Calf-Path


Cross, Precedent in English Law Ch V (5)

Zander, The Law-Making Process (4th edn., 1994) Ch 4

Hart, The Concept of Law, (2nd edn., 1994) Ch VII

Dworkin, Law's Empire (1986) Ch 9


Lord Wright, "Precedent" (1944) Cambridge Law Journal 118

Lord Reid, "The Judge as Law Maker" (1972-73) 12 J S P T L (N S) 22-29

Tur, "Varieties of Overruling and Judicial Law-Making; Prospective Overruling in a Comparative Perspective" (1978) Juridical Review 33-64

Schauer, "Precedent" (1986-87) 39 Stanford Law Review 571- 605

Harris, "Towards Principles of Overruling - When Should a Final Court Second Guess ?" (1990) 10 Oxford Journal of Legal Studies 135-199 ( esp. pp 135-147 and 195-199)

Harris, "Murphy Makes it Eight - Overruling comes to Negligence" (1991) 11 Oxford Journal of Legal Studies 416-430

Tur, "Subjectivism and Objectivism: Towards Synthesis" in Action and Value in the Criminal Law, Shute, Gardner and Horder, eds, (1993) pp 213-237, at pp 219-221

CASES, etc:

Ex parte Campbell (1869) LR 5 Ch 763

London Tramways v LCC [1898] AC 375

Quinn v Leatham [1901] AC 367, 388

Barrass v Aberdeen Fishing and Steam Trawling Co Ltd [1933] AC 402, 412

R v Turner [1944] KB 463

Chapman v Chapman [1954] AC 429, 470

Shaw v DPP [1962] AC 220

Hedley Byrne v Heller [1964] AC 465

Practice Statement (Judicial Precedent) [1966] 1 WLR 1234

Conway v Rimmer [1968] AC 910

Knuller v DPP [1973] 435

DPP v Morgan [1976] AC 182

DPP v Majewski [1977] AC 443

Paton v British Pregnancy Advisory Service Trustees [1979] QB 276,

Davis v Johnson [1979] AC 264

Woodar v Wimpey [1980] 1 W L R 277

Hadmore Productions v Hamilton [1983] 1AC 191, 201(per L Denning); 232-233 (per L Doplock)

Moloney [1985] AC 905 (cf Hyam [1975] AC 55)

Shivpuri [1986] 2 All ER 334 (overruling Anderton v Ryan [1985] 2 All E R 355)

Howe and Another [1987 1 All E R 771 (overruling DPP for N Ireland v Lynch [1975] AC 653)

R v R [1991] 2 All E R 481

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

Chief Adjudication Officer v Foster [1993] 2 WLR 292, 304-306 (per L Bridge)

Derbyshire County Council v Times Newspapers [1993] AC 534

R v Secretary of State for Home Dept. ex parte McQuillan [1995] 4 All ER 400

R v Cambridgeshire Health Authority ex parte B [1995] 2 All ER 129

R v Governor of Brockhill Prison ex parte Evans [2000] 3 WLR 843

R v Lambert; R v Ali; R v Jordan The Times 5th September 2000


"How different is this Treaty! It lays down general principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the Treaty there are gaps and lacunae. These have to he filled in by the judges, or by Regulations or Directives. It is the European way ... much is left to the judges. The enactments give only an outline plan. The details are to he filled in by the judges. Seeing these differences, what are the English courts to do when they are faced with a problem of interpretation? They must follow the European pattern. No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent. To quote the words of the European Court . . ., they must deduce 'from the wording and the spirit of the Treaty the meaning of the community rules'. They must not confine themselves to the English text. They must consider, if need he, all the authentic texts ... (Bulmer v Bollinger [1974] 4 Ch 401, 411, per L Denning)

3 "Parliament generally changes the law for the worse and ... the business of judges is to keep the mischief of its interference within the narrowest possible bounds" (Sir Frederick Pollock)

4 "Law was originally devised, that ordinary men might know what they had to expect; and there is not, at this day, a lawyer existing in Great Britain, [so] vain-glorious to pretend that he has mastered the code ... It is a labyrinth without end; a mass of contradiction that cannot be disentangled" [William Godwin (1756-1836) Enquiry Concerning Political Justice, (1793, 1796, 1798) Vol II, p 402]

5 "... we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives ... [because] ...we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim. If the world in which we lived were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility. We could make rules, the application of which to particular cases never called for a further choice. Everything could he known, and for everything, since it could he known, something could he done and specified in advance by rule. This would be a world fit for 'mechanical jurisprudence'. Plainly this world is not our world" [Concept 128]

6 "... interpretations rest on other interpretations, or, more precisely, on assumptions about what is possible, necessary, telling, essential and so on, so deeply held that they are not [even] thought of as assumptions, the activities they make possible and the facts they entail seem not to be matters of opinion or debate, but a[n objective] part of the world" (Fish, see Katz pp 53-54)

7 [construing legislation] "as if one were interpreting it the day after it was passed" (Lord Steyn R v Burstow & Ireland [1997] 3 WLR 534)

8 [construing legislation on the basis that] "An Act of Parliament should be deemed to be always speaking"(Lord Steyn R v Burstow & Ireland [1997] 3 WLR 534)

9 [it is] "a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning" (Lord Steyn R v Burstow & Ireland [1997] 3 WLR 534)

10 "language is not an instrument of mathematical precision" (Denning, Discipline ..., p 12)

11 "People want two inconsistent things; and that the law is certain and that the law shall be just and move with the times" (Lord Reid)

12 "...most legislation is conceived, drafted and all but enacted in Whitehall" (Miers & Page, p 39).

13 "... almost total exclusion of the House of Commons from the processes whereby legislative initiatives are decided upon and formulated" (Miers & Page, p 43).

14 "There is an inherent contradiction between [the House of Commons] wanting to 'involve itself at an earlier stage in the preparation of certain kinds of legislation' and spending about half the time of the House examining Bills. For if 'earlier stage' means a formal legislative stage, the likelihood is that there will simply be a Chinese game of names but no real progress; but if it means getting in on the basic processes of inquiry, discussion and opinion-formulation that begin to make legislation seem needed, this can only come through general debates and through reports of committees which, in turn, need debating - for all of which time must he found. More fundamentally the need for legislation emerges from administrative processes. The House will only get in at a significantly 'earlier stage' if it tightens its scrutiny generally of all major processes of administration ..."(Miers & Page p45, citing Crick, The Reform of Parliament, 2nd edn.,1967, p227)

15 "especially if this was to disrupt their ordinary programme of scrutiny and oversight" (Miers & Page, p 46)

16 "... the draftsman holds the pen and plays a leading part in shaping the document" (Miers & Page, pp 59-60, citing Kent)

17 ".. . on the one hand, how to find time within limited parliamentary hours for disposing of the growing mass of business which devolves on the Government; and on the other hand, how to reconcile the legitimate demands of the Government with the legitimate rights of the minority, the dispatch of business with the duties of Parliament as a grand inquest of the nation at which all public questions of real importance find opportunity for adequate discussion." (Miers & Page, p 68)

18 "... the power of the majority should not be used to steamroller into silence the protests of the minority" (Miers & Page, pp 72-73, citing Butt).

19 "Protection of the minority is, therefore, in the British Parliament no mere privilege of the minority for the time being: it is a vitally important institution developed in the highest interests of a nation ruled by Parliament" (Miers & Page, p 73, citing Redlich).

20 "Thus Cabinet control of Parliament is exerted - at a price. The Government can only obtain the actual connivance of the official Opposition by sharing with it the planning of the [legislative] timetable, and the responsibility for keeping the debates within the time limits they have agreed upon. [There is] continuous and intimate co-operation of the Government and Opposition Chief Whips through the usual channels" (Miers & Page, p 74, citing Crossman).

21 "It's as though there had been one staff sergeant major running the British and German Staffs in World War I and it's this which really keeps the House of Commons running and enables us to have so few misunderstandings between the two Chief Whips on either side." (Miers & Page, p 75, citing Crossman)

22 "... the most important stage through which the Bill is required to pass; for its whole principle is then at issue, and is affirmed or denied hy a vote of the House..." Miers & Page, p77, citing Erskine May)

23 "The purpose of many Opposition amendments is not to make the bill more generally acceptable but to make the Government less generally acceptable." ( Miers & Page, p82, citing Griffith).

24 "It has been as rare for ministerial amendments to be rejected as for other members' amendments to be successfully moved against Government opposition." (Miers & Page, pp 82-83, citing Griffith, cited)

25 "If the government cannot command a majority in the House or in the Committee, something is wrong. . . . On British parliamentary principles, it is not merely the usual thing but also the normal thing for the government to win." ( Miers & Page, p 83, citing Wheare).

26 "It is utterly futile to have this method of taking a Bill to pieces in order to improve it and moreover it's utterly debilitating. The Government backbenchers waste their time in Standing Committee, where they are hardly allowed to speak because that would prolong the business and anything they say may provoke another Tory speech. The opposition arguments are amateur and bogus, because half the time they don't really understand the details of the clauses they are discussing. . . From time to time dramatic Second Reading debates are staged and the Bill rolls along, getting through without any critical dissection. It is this kind of thing that brings Parliament into disrepute and our modern backbenchers find it quite intolerable." ( Miers & Page, p84, citing Crossman).

27 "We are convinced that whatever view is taken of the purposes of committee stage, whether it is seen as an opportunity to scrutinise Government's proposals and genuinely to improve a bill, or primarily as an opportunity to draw attention to weaknesses in it, or just to harass Ministers, the House as a whole expects its committees to give their attention to all parts of bills. The belated imposition of timetables means that this is most unlikely to happen in bills arousing greater political controversy." (Miers & Page, p.86, citing Crossman).


1 "It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them the sense which is their natural import in the order in which they are placed" (R v Inhabitants of Ramsgate (1827) 6 B&C 712, per Bayley, J.)

2 "If the words of an Act are clear you must follow them, even though they lead to manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity" (R v The Judges of the City of London Court [1892] 1 QB 273, 290)

3 "It is infinitely better to adhere to the words of an Act of Parliament and leave the legislature to set it right than to alter these words according to one's notion of an absurdity" (Hill v East and West India Dock Co (1884)9 App Cas 448, per Lord Bramwell)

4 "If the language of the statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed" (Vacher & Son v London Society of Compositors [1913] AC 107, 121-2, per Lord Atkinson)

5 "It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further" (Becke v Smith (1836) 2 M&W 195 per Parke B)

6 "... we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance and to justify the court in putting on them some other signification, which though less proper, is one which the court thinks the words will bear" [(River Weir Commissioners v Adamson (1877) 2 App Cas 743, 764-5 per Lord Blackburn).

7 "... and it was resolved by them for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discussed and considered:

1st. What was the common law before the making of the Act ?

2nd. What was the mischief and defect for which the common law did not provide ?

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth ?

And 4th. The true reason of the remedy; and the office of the judge is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico" (1584) 3 Coke Rep 7a

8 "You are an attorney. It is your duty to lie, conceal and distort everything, and slander everyone" (As Jean Giradeax, The Mad Woman of Chaillot 2, Adapted by Maurice Valency (1954))

9 "There are statutes and statutes and the strict construction deemed proper in the case, for example, of an a penal or taxative statute [cf Mischief Rule], or one passed to regulate the affairs of an English parish would often be subversive of Parliament's real intent if applied to an Act passed to encourage the peace and good government of a British Colony" (Edwards v AG for Canada [1930] AC 124, 136-7 per Lord Sankey)

10 "English law provides a number of guides to interpretation or 'canons of construction'. A difficulty arises that various canons can return conflicting answers, since English law has not yet authoritatively established any complete hierarchy among the canons. Fortunately this presents no difficulty in the instant case, because all the many canons of construction in question here return the same answer ..." (R v Governor of Pentonville prison, ex p Cheng [1973] A C 931, 949-950 and 959 per Lord Simon).

11 "You will sometimes discover that if you find a maxim or rule on your side, your opponent will find one on his side to counteract it" (Denning, The Discipline of Law, p 9)

12 "It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further" [Becke v Smith (1836) 2 M&W 195 per Parke B]

13 "... such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species" (Endangered Species Act).

14 "... a three inch fish of no particular beauty or biological interest or general ecological importance" (Dworkin)

15 "It is not our province to rectify policy or political judgments by the Legislative Branch. However egregiously they may disserve the public interest. But where the statutory and legislative history, as in this case, need not be construed to reach such a result, I view it as the duty of this Court to adopt a permissible construction that accords with some modicum of common sense and the public weal" (Tennessee Valley Authority v Hill 437 US 153 (1978); Justice Powell at p 196).

16 "The fact that there is no specific mention in the Act of disentitlement so far as a widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time" (R v National Insurance Commissioner ex parte Conner [1981] 1 All ER 769,774 per Lord Lane CJ)

17 "Where a court determines that the forfeiture rule has precluded a person (in this section referred to as "the offender"), who has unlawfully killed another, from acquiring any interest in property mentioned in subsection (4) below, the court may make an order under this section modifying the effect of that rule ...

"The court shall not make an order under this section modifying the effect of the forfeiture rule unless it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case. . . .". (Forfeiture Act sections 2(1) and 2(2))

18 "That great judge, Stephen J the author of the draft Criminal Code of 1879 was firmly of the opinion that, while the power of the judges to create new crimes should certainly be taken away, it would be wrong to enact an exclusive definition of circumstances of justification or excuse. To provide that in no other circumstances than those expressly stated should there be a defence, in his opinion - '... would be to run a risk , the extent of which is difficult to estimate, of producing a conflict between the Code and the moral feelings if the public. Such a conflict is upon all possible grounds to be avoided ... If the Code provided that nothing should amount to an excuse or justification which was not within the express words of the Code, it would ... be vain to allege that the conduct of the accused ... was morally justifiable; that, but for the Code, it would have been legally justifiable; that every legal analogy was in its favour; and that the omission of an express provision was probably an oversight. I think such a result would be eminently unsatisfactory'" (J C Smith, Justification and Excuse in the Criminal Law, pp 3- 4)

19 "unwisdom ... of an exclusive statement of justification or excuse by reference to the law of abortion and the famous case of Bourne" [1939] 1 KB 687 (J C Smith, Justification and Excuse in the Criminal Law, p 5)

20 "For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act" (Abortion Act 1967 Section 5(2))

21 (1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive; and for this purpose -

(a) "firearm" includes an airgun or air pistol, and "imitation firearm" means anything which has the appearance of a firearm, whether capable of being discharged or not; and

(b) "weapon of offence" means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; and

(c) "explosive" means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

(2) ...liable to imprisonment for life" (Theft Act 1968 Section 10)

22 (1) Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence and shall be liable -

(a) on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding [the stat max] or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(2) Where any person is convicted ... the court may make an order for the forfeiture or disposal of any weapon in respect of which the offence was committed. (Prevention of Crimes Act, 1953 Section 1)

23 "... owing to the driving of the vehicle, an accident occurred by which injury was caused to any person" (Theft Act 1968 Section 12A(2)(b))

24 "Section 1(1) says nothing about the mental element ... In these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence." (B v DPP [2000] 1 All ER 833, per L Nicholls)

25 "Interpretation of legislation: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights" (Human Rights Act 1998 section 3(1))

26 "Whosoever has an absolute authority to interpret any written or spoken law is he who is the lawgiver to all intents and purposes and not the person who first wrote or spoke them" (Bishop Hoadley, cited Hart, Concept 1st edn p 137).

27 "At this point students may be ready to fall into despair and wonder if there is any map of the law which shows more than blurred outlines. After recovery from the shock that the construction of statutes is not an automatic [mechanical] process, they may grow too sceptical... they come to learn however that in practice the law is reasonably predictable. The meaning of statutes can be ascertained with as much certainty as one can expect in human affairs" (Derham, Maher & Waller, An Introduction to Law, p 141 ch 9 )


1 "Looking at legislative history - In most of the cases in the courts, it is undesirable for the Bar to cite Hansard or for the judges to read it. But in cases of extreme difficulty, I have often dared to do my own research. I have read Hansard just as if I had been present in the House during a debate on the Bill. And I am not the only one to do so. When the House of Lord's were discussing Lord Scarman's Bill on the Interpretation of Legislation on 26th March 1981, Lord Hailsham LC made this confession (418 1 IL Official Reports (5th series) col 1346: "It really is very difficult to understand what [the Parliamentary draftsmen] mean sometimes. I always look at Hansard, I always look at the Blue Books. I always look at everything I can in order to see what is meant and as I was a member of the House of Commons for a long time of course I never let on for an instant that I had read the stuff. I produced it as an argument of my own, as if I had thought of it myself. I only took the trouble because I could not do the work in any other way. As a matter of fact, I should like to let your Lordships into a secret. If you were to go upstairs and you were a fly on the wall in one of those judicial committees that we have up there, where distinguished members of the Bar ... come to address us, you would be quite surprised how much we read. ... The idea that we do not read these things is quite rubbish ... if you think that they did not discuss what was really meant, you are living in a fool's paradise. Having sat there for five years, I would only say: "I entirely agree and have nothing to add. Thus emboldened, I set about the task of finding out what parliament meant when it passed s 17(8) of the Employment Act 1980" (L Denning in Hadmor Productions v Hamilton [1981] 2 All ER 724, 731)

2 "Lord Denning M.R., however, sought to justify the construction that he placed upon section 17 (8) by referring to the report in Hansard of a speech made in the House of Lords by a peer, who is a distinguished academic lawyer, Lord Wedderburn, when moving an opposition amendment (which was defeated) to delete the subsection from the Bill. There is a series of rulings by this House, unbroken for a hundred years, and most recently affirmed emphatically and unanimously in Davis v. Johnson [1979] A.C. 264, that recourse to reports of proceedings in either House of Parliament during the passing of a Bill which upon the signification of the Royal Assent became the Act of Parliament that falls to be construed, is not permissible as an aid to its construction. Davis v. Johnson was a case heard by a five-member Court of Appeal in which Lord Denning M.R. alone relied upon a report in Hansard of a speech made in the House of Commons by the promoter of an Act of Parliament, as an aid to its construction. He did this without the support of any other member of the court and attracted the expressed dissent of two of them (Goff and Cumming-Bruce L.JJ.). The rule that recourse to Hansard is not permitted as an aid to the construction of an Act of Parliament is one which it is the duty of counsel to observe in the conduct of their clients' cases before any English court of justice. Counsel do observe that duty. They did so in the instant case; none of them made any attempt to refer to Hansard, nor were they given any intimation at the hearing of Lord Denning's intention to do so himself and, in view of the recent decision of this House in Davis v. Johnson, they were entitled to assume that he would not do so. Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is. In the instant case counsel for Hamilton and Bould complained that Lord Denning M.R. had selected one speech alone to rely upon out of many that had been made in the course of the passage of what was a highly controversial Bill through the two Houses of Parliament; and that if he, as counsel, had known that the Master of the Rolls was going to do that, not only would he have wished to criticise what Lord Wedderburn had said in his speech in the House of Lords, but he would also have wished to rely on other speeches disagreeing with Lord Wedderburn if he, as counsel, had been entitled to refer to Hansard". (L Diplock)

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a decision when it appears right to do so.

In this connection they will hear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House." ([1966] 1 WLR 1234).

To learn a language known but smatteringly

In phrases here and there at random, toil'd

Mastering the lawless science of our law,

That codeless myriad of precedent,

That wilderness of single instances,

Thro' which a few, by wit or fortune led,

May beat a pathway out to wealth and fame."(Tennyson Aylmer's Field)



by Sam Walter Foss (1858-1911)

One day through the primeval wood,

A calf walked home, as good calves should;

But made a trail all bent askew

A crooked trail as all calves do.

Since then two hundred years have fled,

And, I infer, the calf is dead.

And from that day o'er hill and glade

Through those old woods a path was made;

And many men wound in and out,

And dodged, and turned, and bent about

And uttered words of righteous wrath

Because 'twas such a crooked path.

This forest path became a lane,

That bent, and turned, and turned again;

This crooked lane became a road,

Where many a poor horse with his load

Toiled on beneath the burning sun,

And travelled some three miles in one,

And thus, a century and half

They trod in the footsteps of that calf.

The years passed on in swiftness fleet,

The road became a village street;

And this, before men were aware,

A city's crowded thoroughfare.

And soon the central street was this

Of a renowned metropolis,

And men two centuries and a half

Trod in the footsteps of that calf

Each day a hundred thousand rout

Followed the zigzag calf about;

And o'er this crooked journey went

The traffic of a continent

A hundred thousand men were led

By one calf near three centuries dead.

They followed still his crooked way,

And lost one hundred years a day;

For such reverence is lent

To well established precedent.

Men are prone to go it blind

Along the calf-paths of the mind,

And work away from sun to sun

To do what other men have done.

They follow in the beaten track,

And out, and in, and forth, and back,

And still their devious course pursue,

To keep the path that others do.

But how the wise old wood gods laugh

Who saw the first primeval calf;

Ah! many things this tale might teach,

But I am not ordained to preach.

2 "Notwithstanding my great admiration for Mr Bentham, I cannot but think that, instead of blaming judges for having legislated he should blame them for the timid narrow, and piecemeal manner in which they have legislated, and for legislating under cover of vague and indeterminate phrases" (John Austin Province 191).

3 "Why should the best decision for now be distorted or thwarted by obeisance to a dead past ?" (Schauer, p 571)

4 "The law is the last result of human wisdom acting upon human experience for the benefit of the public" (Samuel Johnson in Hestor Lynch Piozzi, Anecdotes of Samuel Johnson (1786))

5 "It is revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV" (Holmes Collected Legal Papers p 187)

6 "Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I've been on the bench. The doctrine is that whenever you are faced with a decision, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep" (Justice Lionel Murphy)

7 We have it on the authority of Lord Radcliffe that judges, holding to the "conviction of Galileo", know that "somehow, by some means, there is a movement that takes place" in the exposition of legal principle. The movement may be readily perceived at a distance. Yet, although we may sometimes be unable to say how the law gets from one point to another, no one doubts that movement occurs or that it is "in response to the developments of the society in which [the law] rules ... It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear. In this sense, the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise. Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices (disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question). Even then, the remarks will not be part of a binding rule unless they relate to an issue in contention which had to be decided by the Court to reach its order. (Garcia v National Bank of Australia [1998] HCA 48 paras 47 & 56 per Kirby J)

8 Given the relatively small number of cases about the general law which this Court can accept, it would be unreasonable and undesirable to extend the ambit of dutiful obedience beyond the holdings of the Court to everything said by majority Justices in every decision. That would not only amount to a departure from settled principles governing the doctrine of binding precedent. It would also constitute a departure from the recent encouragement given by this Court to the appellate courts of Australia to play their part in the refinement, development and re-expression of legal principle which cannot, in the nature of things, be wholly left to this Court. Whilst Courts of Appeal and Full Courts throughout Australia may be expected to pay close attention to the opinions on legal principle of individual Justices of this Court, particularly where they are part of a majority on a given issue, those courts are not bound in law by such observations or by obiter dicta or analysis that is not essential to the holding of the Court sustaining its orders. We should not seek to impose a precedential straight-jacket at a time when, because of social and other changes, refinement and development of legal principle is often more important than it was in the past. The present case is a good illustration of that need. ( Garcia v National Bank of Australia [1998] HCA 48 paras 58 & 59 per Kirby J)

9 "A year or so ago, a swimming meet took place at the University of Toronto. Most of the races proceeded as planned. But, at the end of one race, there was a challenge to the winner of the race. The appropriate group of official convened. The deliberations were lengthy and tense. After much argument and poring over the rules, a decision was announced: the winner had been disqualified and the second swimmer was acclaimed the victor. The referee took the unusual course of offering a brief justification of the committee's decision - "the rules were clear ('The winner is the first swimmer to touch the side of the pool with both hands') and, if this regrettable outcome is to be avoided in future, it will be necessary to change the rules". The winning swimmer had only one arm" (A C Hutchinson, Dwelling on the Threshold, Toronto, (1988), p 23)

10 "Holmes divided lawyers into kitchen knives, razors, and stings. Brandeis, he said, was a sting" (Catherine Drinker Bowe, Yankee from Olympus (1944)

11 "In the discussion of human affairs and especially of abortion, controversy can rage over the moral rights, duties, interests, standards and religious views of the parties. Moral values are in issue. I am, in fact, concerned with none of these matters. I am concerned, and concerned only, with the law of England as it applies to this claim" (Sir George Baker P in Paton v British Pregnancy Advisory Service Trustees [1979] QB 276)

12 "... in the three decades and more that have passed since 1966 it has become apparent that the new freedom to depart from previous decisions is used extremely sparingly" (Zander, The Law-Making Process (4th edn., 1994), p 193).

13 "...academic opinion is far from uniform: Traynor and Stone stating one view (distinguishing) De Smith, the other (overruling) and Dias both ! This diversity of academic opinion reflects the variety of opinions stated by their Lordships .... Lords Hodson and Morris ... were both overtly for overruling and Lord Upjohn just as clearly for distinguishing. Lord Reid was uncharacteristically ambivalent and Lord Pearce's qualified concurrence therewith hardly made the position clearer". (Tur 1978 Juridical Review 48)

14 "Judgment ought not to be pronounced by examples or precedents. Decisions therefore though they bind the parties litigating create no obligation on the judges to follow in the same tract (sic track ?) if it shall appear to them contrary to law. It is however certain that they are frequently the occasion of establishing usages which after they have gathered force by a sufficient length of time must from the tacit assent of the state make part of our written law." (Ersk I 147. Cited Lord Reid, p 24)

15 "People want two inconsistent things: that the law shall be certain, and that it shall be just and move with the times. It is our business to keep both objectives in view. Rigid adherence to precedent will not do. And paying lip service to precedent while admitting fine distinctions gives us the worst of both worlds. On the other hand too much flexibility leads to intolerable uncertainty" (Lord Reid, p 26).

16 "of course we must have a general doctrine of precedent - otherwise we can have no certainty. But we must find a middle way which prevents precedent from being our master"(Lord Reid, p25).

17 "My Lords, I have reached my conclusion upon the common law of England without finding any need to rely upon the European Convention. My noble and learned friend, Lord Goff of Chieveley, in Attorney- General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283- 284, expressed the opinion that in the field of freedom of speech there was no difference in principle between English law on the subject and article 10 of the Convention. I agree, and can only add that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field" (Lord Keith of Kinkel in Derbyshire)

18 "Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it. In any event I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty. The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include "the interests of national security" and "preventing the disclosure of information received in confidence". It is established in the jurisprudence of the European Court of Human Rights that the word "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no [p284] more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion" (Lord Goff in Attorney General v Guardian Newspapers (no 2) [1990] 1 AC 109, 283- 284)

19 "I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz. that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny. (Lord Bridge in R v Home Secretary, Ex p. Bugdaycay (H.L.(E.)) [1987] AC 514, 531)

20 "But I do not accept that ... the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. ... we are ... perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it" (L Bridge in R v Secretary of State for the Home Department, Ex parte Brind [1991} 1 AC 696, 748-749)

21 " .. could not be read as demonstrating the establishment of some new ground for intervention by way of judicial review but it pointed the way to a developing feature of domestic jurisprudence relating to fundamental rights which should be regarded as having a secure home in the common law. That principle was that certain rights, broadly those occupying a central place in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (Cmnd No 8969) and obviously including the right to life, were not to be perceived merely as moral or political aspirations nor as enjoying a legal status only upon the international plane of Britain's convention obligations. Rather they were to be vindicated as sharing with other principles the substance of English common law. That reasoning did not promote the incorporation of the European Convention into English law but it could be deployed by judges not as a statutory text but as persuasive legal authority to resolve outstanding uncertainties in common law."( Sir John Laws in ex parte B)

Richard H S Tur

Oriel College

2nd October 2000