Endnote on legislative history Here the question is the extent to which, if at all, judges may consult working papers (les travaux preparatoire, n'est pas ?) including Hansard. I commence with some observations from Lord Denning in Hadmor Productions v Hamilton [1981] 2 All ER 724, 731 e-g [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"

When the case came before the House of Lords, however, L Diplock was highly critical not only of L Denning's particular construction of the legislation in issue but also of the methods used by L Denning to ascertain the meaning of a statute by detailed consideration of its legislative history as provided in Hansard [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".

That has all now been overtaken by Pepper v Hart [1993] AC 593, where it was held, L MacKay dissenting, that the rule excluding reference to Parliamentary material as an aid to statutory construction should be relaxed so as to permit such reference where (a) legislation was ambiguous or obscure or led to absurdity, (b) the material relied upon consisted of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as was necessary to understand such statements and their effect and (c) the statements relied upon were clear. Lord MacKay stated that [3] "The principal difficulty I have ... [is that] ... I believe that practically every question of statutory construction that comes before the courts will involve an argument that the case falls under one or more of these three heads. It follows that the parties' legal advisors will require to study Hansard in practically every such case to see whether or not there is any help to be gained from it. I believe this is an objection of real substance. It is a practical objection not one of principle, and I believe that it was the fundamental reason that Lord Reid, for example, considered the general rule to be a good one as he said in the passage my noble and learned friend has cited from Beswick v. Beswick [1968] A.C. 58, 74A. Lord Reid's statement is, I think, worthy of particular weight since he was a parliamentarian of great [615] experience as well as a very distinguished judicial member of your Lordships' House". Lord Reid's opinion was that [4] "For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in Select Committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court." Lord MadKay is of much the same mind as his illustrious countryman [5]: "Such an approach appears to me to involve the possibility at least of an immense increase in the cost of litigation in which statutory construction is involved. It is of course easy to overestimate such cost but it is I fear equally easy to underestimate it. Your Lordships have no machinery from which any estimate of such cost could be derived ... Your Lordships are well aware that the costs of litigation are a subject of general public concern and I personally would not wish to be a party to changing a well established rule which could have a substantial effect in increasing these costs against the advice of the Law Commissions and the Renton Committee unless and until a new inquiry demonstrated that that advice was no longer valid". [616]

Lord Bridge countered this is his speech [6]: "It should, in my opinion, only be in the rare cases where the very issue of interpretation which the courts are called on to resolve has been addressed in Parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted ... . Provided the relaxation of the previous exclusionary rule is so limited, I find it difficult to suppose that the additional cost of litigation or any other ground of objection can justify the court continuing to wear blinkers which, in such a case as this, conceal the vital clue to the intended meaning of an enactment" [617].

Lord Griffith, too, was for change [7]: "The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament?" [617]

The leading judgment was given by Lord Browne-Wilkinson who came to the [8] "... conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them.[634] ... my main reason for reaching this conclusion is based on principle. Statute law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court's duty in so doing to give effect to the intention of Parliament in using those words. It is an inescapable fact that, despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous. One of the reasons for such ambiguity is that the members of the legislature in enacting the statutory provision may have been told what result those words are intended to achieve. Faced with a given set of words which are capable of conveying that meaning it is not surprising if the words are accepted as having that meaning. Parliament never intends to enact an ambiguity. Contrast with that the position of the courts. The courts are faced simply with a set of words which are in fact capable of bearing two meanings. The courts are ignorant of the underlying Parliamentary purpose. Unless something in other parts of the legislation discloses such purpose, the courts are forced to adopt one of the two possible meanings using highly technical rules of construction. In many, I suspect most, cases references to Parliamentary materials will not throw any light on the matter. But in a few cases it may emerge that the very question was considered by Parliament in passing the legislation. Why in such a case should the courts blind themselves to a clear indication of what Parliament intended in using those words?" [635}

Pulling the various threads together, it appears that there are four major points to be made about reference to legislative history:

1. Fairness. If judges arbitrarily decide to refer to selected parliamentary speeches, Counsel cannot adequately prepare a case. This, as we saw, exercised, L Diplock but it may be met in part by the decision in Pepper v Hart in that such reference is now legally permitted and assumes the status of a standing possibility.

2. Time and Cost: However, solving the fairness problem generates a resources problem. Now, as some of the judges clearly saw, Counsel on both sides may be duty bound to expend time and energy in consulting Hansard and, perhaps, trawling other travaux preparatoire. Obviously this will add to the time and cost without, perhaps, contributing anything to the resolution of the dispute between the parties. As a Government Minister responsible for the legal aid budget, such costs would not have been far from Lord MacKay's mind.

3 Planted Statements and "Spin" Lord Goff expressed himself to me as concerned about the capacity of civil servants to "plant" an appropriate Ministerial statement about the meaning of a controversial piece legislation - for later use by the courts - in the event of a dispute. That kind of law-making is obviously very undemocratic and on that view Pepper v Hart might turn out to be less of a limit on government and more of assistance to it

4 Use Arguably Pepper v Hart has not been much used so far. A trawl of Current Law in October 1996 suggested that perhaps only in as few as 4 cases had Pepper v Hart been unequivocally applied, and only in two of these (Three River DC v Bank of England The Times 8th January, 1996 and Chief Adjudication Office v Foster [1992] 2 WLR 292, 304-305) was there actually recourse to parliamentary papers. In the other 2 cases the court held that there was no ambiguity justifying such a reference.

A Lexis Search in October, 1997 produced a list of 114 cases in which Pepper v Hart was cites but the majority of these are simply brief dismissals of any suggestion that reference should be taken to legislative history. However the number of citations has almost doubled since last year. A Lexis search reveals that, at 1st September, 1998, there have been 237 cases in which Pepper v Hart has been cited. Even so, over a five year period that works out at less than one a week which may of itself suffice to show that the optimism of the majority was well-placed. Closer examination continues to support the conclusion that in the bulk of the cases in which Pepper v Hart has been cited Pepper v Hart was not applied and in the smaller number of cases in which it was applied it was often applied in the negative sense that, there being no ambiguity, reference to Parliamentary materials was inappropriate. Thus in Chief Adjudication Officer v Foster [1993] 2 WLR 292, 304-306 - concerning the interpretation of legislation relating to special allowances for the severely disabled - Lord Bridge is careful to state that he had reached his conclusion independently of Hansard and suggests that reference to Hansard might have prevented the litigation, which I read as a "legal aid point".

What is left uncertain is whether the concerns of Lord Reid and Lord MacKay, too, were well founded in that those preparing cases for clients must now conduct the Pepper v Hart research, against the possibility that the court may later decide that reference to legislative history is appropriate and permissible. Inevitably this increases costs and extends the time needed for preparation, arguably unnecessarily in the bulk of the cases where it is undertaken. So, perhaps, we should take Pepper and Hart with a pinch of salt !

Statute law is law in the form of precept, accessible in an authoritative written formulation, whereas common law, that is judge made law, is law as much in the form of example, and is not available in any authoritative written formulation. It follows, I think, that there are important and fundamental differences between statutory law and common law. Lord Reid certainly thought so [9]: "I would say that in dealing with precedent the most dangerous pitfall is to treat the words of eminent judges as if they were provisions in an Act of Parliament" [26]. I take this difference to be one in logical form. Statutes may at least present themselves as "closed". If A is, Bought to be, full stop. However, common law is always "open". If A is, B ought to be, unless ... Dworkin [Empire 313] however, expresses the view that [10] "Hercules [his name for a hypothetical superhuman model judge] will use much the same techniques of interpretation to read statutes that he uses to decide common law cases ...". Hart[Concept 121-124], on the other hand, whilst acknowledging that the difference between these two approaches can be exaggerated, nonetheless regards the difference as significant [11]: "Two principal devices, at first sight very different from each other, have been used for the communication of such general standards of conduct in advance of the successive occasions on which they are to be applied. One of them makes a maximal and the other a minimal use of general classifying words. The first is typified by what we call legislation and the second by precedent. We can see the distinguishing features of these in the following simple non-legal cases. One father before going to church says to his son, 'Every man and boy must take off his hat on entering a church.' Another, baring his head as he enters the church says, 'Look: this is the right way to behave on such occasions'" [121]. Thus guidance may be given by rule or by example. Communication by example accompanied by some words such as "Copy me" [12] "...may leave open ranges of possibilities, and hence of doubt ... In contrast with the indeterminacies of examples, the communication of general standards by explicit general forms of language ... seem clear, dependable, and certain" [122]. So one might conclude, with Hart, that statutes are more determinate guides than precedent and this is what I hinted at in the distinction between "closed" and "open" formulations. For Hart, and I agree, this distinction is, however, only a matter of degree. As we have already seen even well made statutes may suffer from degrees of indeterminacy which require sometimes very sophisticated interpretive arguments. However, for Hart, [13] "The communication of general rules by authoritative examples [RHST i.e. "Precedent"] brings with it ... indeterminacies of a more complex kind" [131].

Hart's three pairs of contrasting facts

For Hart, [14] "Any honest description of the use of precedent in English law must allow a place for the following pairs of contrasting facts. First, there is no single method of determining the rule for which a given authoritative precedent is an authority. Notwithstanding this, in the vast majority of decided cases there is very little doubt. The head-note is usually correct enough. Secondly, there is no authoritative or uniquely correct formulation of any rule to he extracted from cases. On the other hand, there is often very general agreement, when the bearing of a precedent on a later case is in issue, that a given formulation is adequate. Thirdly, whatever authoritative status a rule exacted from precedent may have, it is compatible with the exercise by courts that are bound by it of the following two types of creative or legislative activity. On the one hand courts deciding a later case may reach an opposite decision to that in a precedent by narrowing the rule extracted from the precedent, and admitting some exception to it not before considered, or, if considered, left open. This process of 'distinguishing' the earlier case involves finding some legally relevant difference between it and the present case, and the class of such differences can never be exhaustively determined. On the other hand, in following an earlier precedent the courts may discard a restriction found in the rule as formulated from the earlier case, on the ground that it is not required by any rule established by statute or earlier precedent. To do this is to widen the rule. Notwithstanding these two forms of legislative activity, left open by the binding force of precedent, the result of the English system of precedent has been to produce, by its use, a body of rules of which a vast number, of both major and minor importance, are as determinate as any statutory rule. They can now only he altered by statute, as the courts themselves often declare in cases where the 'merits' seem to run counter to the requirements of the established precedents" [131-132].

By way of an example of what I call the "concertina" nature of rationes, I refer to the ratio decidendi of the infamous case of DPP v Morgan [1976] AC 182 which the subjectivist tendency in criminal law regards as being wide enough to establish a general rule of criminal law about honest, albeit unreasonable, mistake whereas I myself understand the ratio as being better understood as altogether narrower and relating only to the definition of rape. [see "Subjectivism and Objectivism: Towards Synthesis" pp 219-221] Prior to the decision in Morgan, the definition of rape in English criminal law was distinctly minimalist. As Humphreys J put it in R v Turner [1944] KB 463 [15] "... on a charge of rape the Crown has to prove two things: intercourse and the non-consent of the woman" [469] No doubt the prosecution also had to establish mens rea in respect of the conduct element of the offence but that, I think, is implicit because ordinarily, perhaps always, the fact of sexual intercourse itself is likely to persuade a jury that the accused has the requisite intent. However, there was, on the Turner definition, no suggestion or implication that the prosecution had to prove any mens rea in respect of the circumstance that the victim was not consenting. In other words the Turner definition of rape presented it as a crime of what I call "partial mens rea", that is a crime where mens rea qualifies some but not all parts of the actus reus, in particular whereas the conduct element of the actus reus is qualified by mens rea, the circumstantial element is not. Morgan certainly changed that, and [16] "... it is no longer be disputed that, in England, perception of the woman's consent is an aspect of the mental element in crimes of rape" [per Dixon J in Pappajohn (1980) 111 DLR (3d) 1, 11] It is therefore entirely possible to interpret the decision in Morgan narrowly as effecting a change only in the definition of rape but the fashion, fuelled by the dominant subjectivist tendency in English criminal law, has been to interpret it widely, as laying down a far-reaching rule or ratio decidendi reaching well beyond the definition of rape to general principles of mens rea and mistake of fact.

Fixed Rules of Common Law:

By way of comment on Hart's suggestion that some rules of the common law are as fixed as statutory rules, I draw you attention to Cross's observations on the words of James LJ in Ex parte Campbell (1869) LR 5 Ch 763, 766 [16]: "Where once certain words in an Act of Parliament have received a judicial construction in one of the superior courts, and the legislature has repeated them without alteration in a subsequent statute, I conceive that the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them". Cross thinks that [17] "If this is the statement of an absolute rule, the consequences might be somewhat striking" and approvingly cites Denning LJ in Barrass v Aberdeen Fishing and Steam Trawling Co Ltd [1933] AC 402, 412 who said [18] "The true view is that the court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms". Cross comments, [19] "In other words, the rule in Ex parte Campbell is not an absolute rule. It will be applied unless some very good reason can be given for not doing so" [175]

Also by way of comment on Hart's (1961) suggestion that some rules of the common law are as fixed as statutory rules, I draw to your attention the single most important event in judicial process in the English legal system this century, namely the Practice Statement (Judicial Precedent) [1966] 1 W L R 1234. Let me recite that remarkable text in full [20]: "Their Lordships regard the use of precedent as an indispensable foundation on which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

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."

Important as this Statement is, plainly it adds to rather than diminishes the complexities of precedent. De Tocqueville observed that [21]:"Our written law is often difficult to understand, but anyone can read it. There is nothing, on the other hand, more obscure for the ordinary person and less in his grasp than a legal system based on precedent. The need for the student of the law in England and the United States, the high esteem in which his talent is held, separates him more and more from the people, and finally puts him in a class apart". [Democracy in America (1835) p 39]. By "our law" I take de Tocqueville to be referring to the law of France, which, as a civilian jurisdiction, based itself upon Roman Law replete with a code and a logical and rational structure. Common law is not like that. It is a mess. Lord Diplock said that the common law is " a maze not a motorway" and he thought that that is "the beauty of it". It seems to others, however, to be a disfigurement.

Common law thinking is a particular way of thinking and that when we consider the judge's role in that process we need to understand common law thought ways not merely from the outside (as a visiting sociologist might) but from an internal point of view that respects the nature and integrity of the subject matter. Note well this aphorism from Oliver Wendell Holmes Jnr [22]: "The life of the law has not been logic; it has been experience." [The Common Law (1881) p 1]. Asquith LJ observed in Chapman v Chapman [1954] AC 429, 470 [23] "Nor, speaking more generally, does English jurisprudence start from a broad general principle and decide cases in accordance with its logical implications. It starts with a clean slate, scored over in course of time with ad hoc decisions. General rules are arrived at inductively, from the collation and comparison of those decisions."

Lord Halsbury's famous dictum in Quinn v Leatham [1901] AC 367, 388 is in similar vein [24]: "A case is only authority for what it decides. I entirely deny that it can be quoted for a proposition that may be seen to follow logically from it" and, as those of you who read judgments in leading cases will learn, Lord Salmon referring, in DPP v Majewski [1977] AC 443, 482D to the distinction between so-called "specific intent" which can be negatived by self-induced intoxication and so-called "basic intent" which cannot be negatived by self-induced intoxication, was adamant "... that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law of England, which is founded upon common sense and experience rather than strict logic". Here we encounter the legal reality that logic is tempered by experience; that principle may be overridden by policy; and that there is a dialectic of doctrine and decision. Like the river and its banks: just as the banks guide the river so the river moulds the banks and yet, as physical geographers will know, a river can over time move in this way many miles across the plain.

Lord Denning, too, observed that [25] "We do not seek, as Continental judges do, to lay down principles first by abstract reasoning and then apply them to concrete cases. We decide the cases according to their merits and then see what principles emerge from them." [The Changing Law, p 23] This introduces a further, methodological distinction, easily exaggerated, but nonetheless real, between legal systems based chiefly on inductive reasoning, as is the common law with its case by case method out of which loose, open-ended principles may emerge, and systems based on deductive reasoning where general principles provided the major premises in syllogistic reasoning. Tennyson catches the illogicality and singularity of the common law and the difficulties it poses for the student in Aylmer's Field [26]:

"...and as we task ourselves

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."

So the common law is charged with a lack of logical structure and clarity - it is perceived by its critics as impenetrably obscure and as "a series of isolated dooms". But there are other criticisms, too. Bentham asked "Who is it that makes the common law ?" He answered "It is the judges". He then asked, "How do they make it ?" And he answered, "... like we make laws for our dog, wait until he does something wrong and then beat him for it !". So added to the illogicality and obscurity of the common law, is a serious charge that it is necessarily retrospective in operation, applying now to the instant case law that was not or not wholly in existence back then when the acts being judged were performed. Lord Reid observed [27]: "When Parliament passes an Act there is always an objection to any proposal to make it retrospective. But judge made law is always retrospective. We cannot say that the law until yesterday was one thing, from tomorrow it will be something different. That would indeed be legislating. I believe that in America some experiments of this kind have been made and I should like to know more about them." [23]. I shall have something to say later about "prospective overruling" but Lord Reid's hesitation about prospective law making - which would indeed be judicial legislation - does not sit comfortably with his justly famous "fairytales" passage [28]: "There was a time when it was thought almost indecent to suggest that judges made law - they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tales any more." ["The Judge as Law Maker" 12 JSPTL (NS) pp 22-29, 22 (1972-73)]. (But NB Klienwort Benson and ex p Evans)