Judges do not understand enough about the parliamentary process to be able to make sense of many of the materials they are required to handle, including the text of Acts of Parliament and subordinate legislation.
The starting point for the paper is the increasing propensity of judges to have express regard to an increasingly wide range of parliamentary and political materials and circumstances in the course of statutory interpretation. Through a series of compelling examples, the paper shows how this propensity causes more problems than it solves, partly because judges lack the necessary understanding of the Parliamentary process.
One important example relates to judges’ use of Hansard to determine legislative intent, a use that was permitted (in certain circumstances) following the House of Lords’s 1993 decision in Pepper v Hart. The paper explains how judges should approach Hansard with very considerable caution. Hansard is far less authoritative as a text than the decision in Pepper v Hart and the result of the decision requires. Judges should resist the temptation to attach significance to anything but the broadest thrust of what is recorded as having been said in Hansard. That judges do not do so, suggests that they do not appreciate the limitations and constraints on Hansard as a record.
Scrutiny of SIs
A second example relates to the courts’ increased willingness, when construing a statutory instrument, to take notice of whether or not the instrument in question was adopted in accordance with the negative resolution procedure or draft affirmative resolution procedure. However, the distinction between the two procedures is irrelevant to the question of how much weight can be given to a particular nuance or detail of the legislative text. Statutory instruments are as unamendable in the draft affirmative procedure as they are in the negative resolution procedure. The negative and affirmative resolution procedures are both, in effect, approvals of the overall thrust of an instrument, rather than a detailed consideration of any particular detail within it. Judges sometimes refer to the fact that an instrument subject to the affirmative procedure has been debated in both Houses of Parliament. But this ignores the realities of parliamentary procedure. An affirmative scrutiny instrument rarely receives significant substantive debate in the House of Commons. In almost every case, the reality is that a notional debate lasting minutes or seconds takes place in a Committee room upstairs, and there is not even a formal vote in the Chamber itself.
To some extent, the remedy is training for the judges in the Parliamentary process—but, at the same time, a little learning can be a dangerous thing. Judges who consider themselves experts in the legislative process could become as dangerous as Ministers who consider themselves experts in the law. The more important remedy is for judges to stick more closely to the text of legislation and the objectively inferred intention of Parliament in promulgating that text. Judges should speculate less about intention and motive based on materials and events that are extraneous to the text and public context, and that by definition they understand only imperfectly.
Daniel Greenberg served in the Lord Chancellor’s Department from 1988 to 1991 and in the Office of the Parliamentary Counsel from 1991 to 2010. From 2010 to 2016 he was an adviser in the Office of Speaker’s Counsel, House of Commons, and in 2016 was appointed Counsel for Domestic Legislation in the House of Commons.