Pepper Hart
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Pepper Hart
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Leading English case on statutory interpretation
[1992] UKHL 3 [1993] AC 593 [1992] 3 WLR 1032
^ [1678] 3 Swan 644
^ [1769] 4 Burr 2303
^ [1968] AC 58
^ [1971] 2 QB 614
^ [1989] AC 66
^ [1979] AC 264
^ [1984] 1 SCR 536
^ [1993] 1 All ER 299
^ [2003] 2 All ER 87
^ [2001] 2 WLR 15
^ [2003] UKHL 63
^ [2003] UKHL 40
^ [2006] UKHL 32
^ Littleboy & Kelly (2005) p. 1
^ Vogenauer (2005) p. 654
^ Nyman (1993) p. 69
^ Glover (1976) p. 41
^ Davies (1993) p. 172
^ Bradley (2007) p. 364
^ Dyson (1990) p. 122
^ Dyson (1990) p. 123
^ Dyson (1990) p. 124
^ Dyson (1990) p. 125
^ Dyson (1990) p. 126
^ Healy (1999) p. 238
^ Davies (1993) p. 173
^ British and Irish Legal Information Institute (BAILII) p. 22
^ Littleboy & Kelly (2005) p. 2
^ BAILII p. 27
^ BAILII p. 5
^ BAILII p. 2
^ BAILII p. 4
^ BAILII p. 8
^ BAILII p. 6
^ Girvin (1993) p. 475
^ Girvin (1993) p. 476
^ Bates (1995) p. 127
^ Baker (1993) p. 353
^ Girvin (1993) p. 477
^ Stallworthy (1993) p. 159
^ Bates (1995) p. 128
^ Klug (1999) p. 246
^ Styles (1994) p. 152
^ Styles (1994) p. 153
^ Duff II (1999) p. 744
^ Duff I (1999) p. 467
^ Duff I (1999) p. 468
^ Duff II (1999) p. 767
^ Brudney (2007) p. 5
^ Brudney (2007) p. 28
^ Brudney (2007) p. 29
^ Brudney (2007) p. 30
^ Healy (1999) pp. 241–242
^ Jenkins (1994) p. 23
^ Jenkins (1994) p. 24
^ Vogenauer (2005) p. 633
^ Healy (1999) p. 246
^ Littleboy & Kelly (2005) p. 3
^ Kavanagh (2005) p. 98
^ Kavanagh (2005) p. 99
^ Kavanagh (2005) p. 100
^ Kavanagh (2005) p. 101
^ Kavanagh (2005) p. 102
^ Baker (1993) p. 354
^ Baker (1993) p. 356
^ Jenkins (1994) p. 25
^ Jenkins (1994) p. 26
^ Steyn (2001) p. 67
^ Vogenauer (2005) p. 646
^ Scott (1993) p. 491
^ Vogenauer (2005) p. 634
^ Millett (1999) p. 109
^ Vogenauer (2005) p. 635
^ Vogenauer (2005) p. 636
^ Vogenauer (2005) p. 637
^ Vogenauer (2005) p. 639
^ Kavanagh (2005) p. 104
^ Vogenauer (2005) p. 638
^ Vogenauer (2005) p. 645
^ Brudney (2007) p. 3
^ Brudney (2007) p. 4
^ Brudney (2007) p. 27
Glover, Harold (1976). "Finance Act 1976" (PDF) . Her Majesty's Stationery Office . Retrieved 10 June 2010 .
"Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 (26 November 1992)" . BAILII . Retrieved 3 March 2010 .
Baker, John (1993). "Statutory Interpretation and Parliamentary Intention". Cambridge Law Journal . Cambridge University Press. 52 (3): 353–357. doi : 10.1017/S0008197300099761 . ISSN 0008-1973 . S2CID 145664037 .
Bates, T. (1995). "The Contemporary Use of Legislative History in the United Kingdom". Cambridge Law Journal . Cambridge University Press. 54 (1): 127–152. doi : 10.1017/S0008197300083185 . ISSN 0008-1973 . S2CID 145234815 .
Bradley, Anthony Wilfred; Ewing, Keith (2007). Constitutional and administrative law (14th ed.). Pearson Education. ISBN 978-1-4058-1207-8 .
Brudney, James J. (2007). "Below the Surface: Comparing Legislative History Usage by The House of Lords and The Supreme Court". Washington University Law Review . Washington University School of Law . 85 (1). ISSN 0043-0862 .
Davies, Denzil (1993). "Pepper v. Hart". British Tax Review . Sweet & Maxwell. 1993 (2). ISSN 0007-1870 .
Duff, David G. (1999). "Interpreting the Income Tax Act – Part 1: Interpretative Doctrines". Canadian Tax Journal . Canadian Tax Foundation. 47 (3). ISSN 0008-5111 .
Duff, David G. (1999). "Interpreting the Income Tax Act – Part 2: Toward a Pragmatic Approach". Canadian Tax Journal . Canadian Tax Foundation. 47 (4). ISSN 0008-5111 .
Dyson, Jacqueline (1990). "Pepper v Hart". British Tax Review . Sweet & Maxwell. 1990 (3). ISSN 0007-1870 .
Girvin, Stephen D. (1993). "Hansard and the Interpretation of Statutes". Anglo-American Law Review . Tolley Publishing. 22 (497). ISSN 0308-6569 .
Healy, Michael P. (1999). "Legislative Intent and Statutory Interpretation in England and the United States: An Assessment of the Impact of Pepper v Hart". Stanford Journal of International Law . Stanford University Press . 35 (231). ISSN 0731-5082 .
Jenkins, J.C. (1994). "Pepper v Hart: A Draftsman's Perspective". Statute Law Review . Oxford University Press. 15 (1): 23–30. doi : 10.1093/slr/15.1.23 . ISSN 0144-3593 .
Kavanagh, Aileen (2005). "Pepper v Hart and matters of constitutional principle". Law Quarterly Review . Sweet & Maxwell. 121 (1). ISSN 0023-933X .
Klug, Francesca (1999). "The Human Rights Act 1998, Pepper v. Hart and all that". Public Law . Sweet & Maxwell. 43 (2). ISSN 0033-3565 .
Littleboy, Charlotte; Richard Kelly (2005). "Pepper v Hart" . Commons Briefing Papers . Library of the House of Commons (SN00392).
Millett, Peter (1999). "Construing Statutes". Statute Law Review . Oxford University Press. 1999 (20). ISSN 1464-3863 .
Nyman, Bernard M. (1993). "Interpretation: courts may refer to Hansard as an aid to interpretation in ambiguous cases". Entertainment Law Review . Sweet & Maxwell. 4 (3). ISSN 0959-3799 .
Scott, Colin (1993). "Pricing offences and statutory interpretation after Pepper v Hart". Journal of Business Law . Sweet & Maxwell. 1993 (3). ISSN 0021-9460 .
Stallworthy, Mark (1993). "Construing Acts of Parliament in the United Kingdom: reference to Parliamentary debates – Pepper v Hart". International Company and Commercial Law Review . Sweet & Maxwell. ISSN 0958-5214 .
Steyn, Johan (2001). "Pepper v Hart; a re-examination". Oxford Journal of Legal Studies . Oxford University Press. 21 (1): 59–72. doi : 10.1093/ojls/21.1.59 . ISSN 0143-6503 .
Styles, Scott C. (1994). "The Rule of Parliament: Statutory Interpretation after Pepper v Hart". Oxford Journal of Legal Studies . Oxford University Press. 14 (158). doi : 10.1093/ojls/14.1.151 . ISSN 1464-3820 .
Vogenauer, Stefan (2005). "A retreat from Pepper v Hart? A reply to Lord Steyn". Oxford Journal of Legal Studies . Oxford University Press. 25 (4): 629–674. doi : 10.1093/ojls/gqi027 . ISSN 0143-6503 .
Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 , is a landmark decision of the House of Lords on the use of legislative history in statutory interpretation . The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege . [1]
John Hart and nine others were teachers at Malvern College who benefited from a "concessionary fee" scheme that allowed their children to be educated at the college for one-fifth of the normal fees. The Inland Revenue attempted to tax this benefit based on the Finance Act 1976 . There was a dispute over the correct interpretation of the Act. The Special Commissioners charged with assessing the tax found in favour of Hart, but both the High Court of Justice and Court of Appeal of England and Wales found in favour of the Inland Revenue. The case then went to the House of Lords, which, making use of statements in Parliament as recorded in Hansard , found in favour of Hart. Lord Mackay , dissenting, argued that Hansard should not be considered admissible evidence because of the time and expense involved in a lawyer having to look up every debate and discussion on a particular statute when giving legal advice or preparing a case.
The decision met with a mixed reception. While judges cautiously accepted the judgment, some legal academics argued that it violated rules of evidence, damaged the separation of powers between the executive and Parliament and caused additional expense in cases. The decision was subjected to an assault by Lord Steyn in his Hart Lecture, delivered on 16 May 2000 and titled " Pepper v Hart : A Re-examination", in which he disputed exactly what the House of Lords had meant by their decision and also attacked the logic and legal theory behind it. Since Lord Steyn's lecture, several judicial decisions have limited the use of Pepper by the courts; the result of these changes, according to Stefan Vogenauer , is that "the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless". [2]
Hart and nine others were teachers at Malvern College , where from 1983 to 1986 they took advantage of a "concessionary fee" scheme, which allowed their children to be educated at rates one-fifth of those paid by other pupils. They disputed the amount of tax they had to pay under the 1976 Finance Act, [3] Section 63 of which said that:
The cash equivalent of any benefit chargeable to tax ... is an amount equal to the cost equivalent of the benefit, less so much (if any) of it as is made good by the employee to those providing the benefit ... the cost of a benefit is the amount of any expense incurred in or in connection with its provision, and (here and in those subsections) includes a proper proportion of any expense. [4]
The Inland Revenue , attempting to tax this benefit, argued that the "cost" of the benefit meant an average of the cost of providing it; if there were 100 pupils at a school that cost £1 million per year to run, the "cost" per pupil was £10,000. Hart and his fellow teachers disputed this and argued that it was instead marginal cost , saying that other than food, stationery, laundry and similar there was no cost to the school due to the children's presence that would not be there already. [5] The Special Commissioners (an appellate body for income tax claims), [6] ruling in favour of Hart, noted that not only was the school not full to capacity, with the teachers' children having no impact on waiting lists, but that the "concessionary fee" covered all costs incurred by the school in the course of educating those particular pupils. [7] It was found, however, that during debate on the Finance Act, ministers had made statements in the House of Commons which supported the idea that such "benefits" should be excluded from tax. [8]
Following the report of the Special Commissioners, the case was appealed to the High Court of Justice 's Chancery Division, where it was heard by Vinelott J . In his judgment (issued 24 November 1989), Vinelott decided, based on the act, that "any expense incurred" referred to the average cost of keeping pupils, not the costs of keeping the teachers' children as pupils, [9] reversing the Special Commissioners' decision. [10] The case was then heard by the Court of Appeal , which issued its judgment on 13 November 1990. The three judges confirmed Vinelott's decision, ignoring the Hansard element of the case and confirming that, based on the Act's text, "any expense incurred" referred to the average cost. [11]
Again appealed, the case came before a 5-judge panel of the House of Lords . They initially agreed with the Court of Appeal by a 4–1 majority. [12] At the end of the preliminary hearing, the judges became aware that, during the Finance Act's committee stage, Financial Secretary to the Treasury Robert Sheldon remarked (in response to a question about places for the children of teachers at fee-paying schools) "The removal of clause 54(4) will affect the position of a child of one of the teachers at the child's school because now the benefit will be assessed on the cost to the employer, which would be very small indeed in this case", implying that the "expense" is meant to be the cost to the school, not the average cost of having a pupil there. As a result of this discovery, the House of Lords chose to reconvene as a 7-judge panel, consisting of Lord Mackay , Lord Keith , Lord Bridge , Lord Griffiths , Lord Ackner , Lord Oliver and Lord Browne-Wilkinson . [13]
The court reconvened and issued its judgment on 26 November 1992, read by Browne-Wilkinson. Browne-Wilkinson found in favour of Hart, and on the subject of Hansard wrote that:
My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule [that Hansard may not be used] unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House
of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria. [14]
In prior cases, the fear had been expressed that using parliamentary debates as evidence in court could violate parliamentary privilege , under Article 9 of the Bill of Rights 1688 (since using parliamentary debates as evidence would involve discussing what went on in Parliament within the courts). [15] Browne-Wilkinson held that:
In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there. [16]
Agreeing with Browne-Wilkinson, Lord Griffiths also wrote, in regards to legislative interpretation, that:
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. [17]
Mackay, in his dissenting judgment, came to the same conclusion as the rest of the House on the interpretation of the Finance Act, but without the use of Hansard . Although he agreed that such a use would not violate Article 9, he argued that it was not appropriate:
I believe that practically every question of statutory construction that comes before the courts will involve an argument that the case [could use Hansard]. 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 ... 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. [18]
For several judges, the use of Sheldon's statement in Parliament was a deciding factor. In the initial hearing, Lords Bridge, [19] Browne-Wilkinson and Oliver were all in favour of dismissing Hart's case, later changing their mind with the new evidence available to them. [20] Lord Griffiths, on the other hand, was not swayed by the use of Sheldon's statement; he wrote that "I should myself have construed the section in favour of the taxpayer without recourse to Hansard". [21]
Before Pepper , it was impossible to use Parliamentary discussions as evidence in court cases; William Blackstone wrote in the 18th century that to allow judicial review of "unreasonable" legislation was to "set the judicial power above that of the legislature, which would be subversive of all government". [22] Historically, the courts had been more lenient; while this suggestion first appears in the 14th century, with the intention that legislation was best interpreted by those who had written it, the principle was not strongly followed. In the 1678 case of Ash v Abdy , [nb 1] Lord Nottingham chose to refer to the parliamentary history of the Statute of Frauds , and in Millar v Taylor , [nb 2] in 1769, the first case to explicitly state this principle (as "The sense and meaning of an Act of Parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the House where it took its rise"), [23] the court chose to depart from it. [24] The principle was most used during the 19th and 20th centuries, with a noted example being Beswick v Beswick , [nb 3] where Lord Reid maintained that it would be inconvenient and expensive for lawyers to have to refer to Hansard when preparing cases. [25] Both the English and Scottish Law Commissions agreed with the rule in their 1969 Report on the Interpretation of Statutes . [26]
During the late 20th century there was a gradual "retreat" from this rule; in Sagnata Investments Ltd v Norwich Corporation , [nb 4] the courts allowed Hansard material to be submitted to determine the purpose of legislation (but not to interpret the statute), and in Pickstone v Freemans plc , [nb 5] it was allowed to assist in the understanding of delegated legislation. A noted attack on the rule was made by Lord Denning in Davis v Johnson , [nb 6] where he said that asserting that the courts could not use Hansard was similar to saying that the judges "should grope about in the dark for the meaning of an Act without switching on the light. In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings." [27] Despite these exceptions, the courts regularly maintained that it was not possible to use internal Parliamentary discussions as an aid to legislative interpretation. [28] The result of Pepper was a reversal of that rule; a court could use internal Parliamentary discussions where it was relevant to "the very point in question in the litigation", where a piece of legislation is "ambiguous or obscure, or the literal meaning of which leads to an absurdity", with the intention being to understand "the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words". [29]
The decision in Pepper has been linked to a positive move in statutory interpretation that had been proceeding since the end of the Second World War. Previously, the dominant approach was that of the literal rule , supplemented by the golden and mischief rules (that interpretations should not be
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