IESC 60 · Supreme Court

THE SUPREME COURT

APPEAL NO. 11 & 28/00

1999 NO. 7308P

Denham, J.

Murphy, J.

Murray, J.

McGuinness, J.

Fennelly, J.

BETWEEN

DEREK CRILLY

Plaintiff

and

T.J. FARRINGTON LIMITED and JOHN O’CONNOR

Defendants

AND IN THE MATTER OF AN ISSUE TO BE TRIED

BETWEEN

EASTERN HEALTH BOARD

Claimant/Appellant

and

DEREK CRILLY

First Named Respondent

and

FBD INSURANCE PLC

Second Named Respondent

Judgment delivered the 11th day of July, 2001, by Murray, J.

The substantive issue in this case concerns the interpretation of Section 2 of the Health (Amendment) Act 1986 and in particular the

manner in which the Eastern Health Board, now known as the Eastern Regional Health Authority, calculated the charges which it is

entitled, by virtue of that section, to impose on a person to whom in-patient or out-patient services have been provided in respect of

injuries received in a road traffic accident and where the person injured is entitled to recover damages from a negligent wrongdoer

who caused or contributed to the said accident.

A subsidiary but important issue also arises concerning the use of a ministerial statement in Dáil Eireann as an aid to the interpretation

of the Act.

Mr Crilly received serious injuries in a road traffic accident and successfully sued

1Messrs T.J. Farrington Limited and John O’Connor for negligence as a result of which he was awarded damages in the amount of

£1,667,078.00. Since section 2 of the 1986 Act applied to Mr Crilly the Health Board made a charge pursuant to that section in

respect of the treatment which he had received for his injuries. The charges made by the Health Board were recoverable from the

Defendants and ultimately the Defendants’ insurers, FBD Insurance Plc, the second named respondents. Issues arose as to the level

of charges imposed by the Health Board and in particular as to their manner of calculation in the exercise of its powers under Section

2. This is the issue which is now being litigated in these proceedings.

Mrs Justice Denham in her judgment has set out all the relevant facts and arguments of the parties and because I have come to the

same conclusion as she does in her judgment concerning the interpretation to be given to the Act it is not necessary for me to refer

to them except in so far as they are relevant to the issue concerning the admission of statements made by a Minister in the

Oireachtas as an aid to the interpretation of Section 2 of the Act.

The basic submission of the Appellants, the Health Board, is that the charges which it may make pursuant to Section 2 of the 1986

Act may be properly calculated according to, what they call, the Average Daily cost. The Average Daily cost is calculated by taking

the hospital’s total annual expenditure and dividing this by the number of bed days occupied in the year. It excludes capital and

capital depreciation costs. The Appellants contend that this method of calculating the charges to be made is a proper and reasonable

exercise of their powers under Section 2 of the 1986 Act properly construed.

In the High Court the Appellant sought to rely on a ministerial statement made in Dáil Éireann during the passage of the Bill as support

for the interpretation for which they contended. It was also part of the case made by the Appellants before this Court that Section 2

of the Act should be interpreted in the light of a ministerial statement in Dáil Éireann that the charge contemplated under Section 2

“would normally be the average daily cost per bed in the hospital concerned.”

The learned High Court judge ruled that Counsel for the Appellants was entitled to introduce the ministerial statement for the purpose

of persuading the court to a particular view as to the interpretation of the statute. As I understand the learned High Court’s judgment

such a ministerial statement is admissible for such purposes even where the statutory provision in question is unambiguous. Having

done so the learned High Court judge found the ministerial statement of assistance in the interpretation of the Section “but only by

implication” namely that, contrary to one of the arguments put forward by the Respondents, it was never intended that charges

provided by in Section 55 of the Health Act 1970 should apply to a case of this nature. He did go on to observe that he had already

formed that view independently of considering the ministerial statement.

In this appeal the Appellants have relied on the learned High Court Judge’s ruling and repeated their submissions concerning the

admissibility of ministerial statements as an aid to the construction of statutes. The Respondents, for their part, object to the

admissibility of parliamentary debates for such a purpose on the grounds, inter alia, that they are excluded by a long standing

common law rule to that effect and because to do so would infringe the separation of powers between the Legislature and the

Courts. In these circumstances this is an issue which I consider needs to be addressed in this appeal and the one with which this

judgment is concerned.

The Interpretation Issue:

The interpretation of legal texts such as statutes has presented problems from the earliest times to the present day. Plato urges that

laws be interpreted according to their spirit rather than literally. Voltaire expressed the view that to interpret the law is to corrupt it.

These two anecdotes simply highlight the historical tension which still exists between the search for the “true intent” of a statute

and legal certainty. That such tensions should persist to the present day is not surprising when one considers that first, there is the

law; then there is interpretation. Then interpretation is the law. This simplified reference to the judicial process emphasises that when

courts apply a statute the interpretation which they give it has ultimate authority. Voltaire’s misgivings would not be altogether

misplaced in a judicial environment where rules for interpretation of statutes were lax, subjective or even non-existent. Then there

would be a real likelihood that in some cases the Courts would usurp the functions of the legislature.

Assuming that a statute is not drafted in haste, which is by no means always the case, and the parliamentary drafter has carefully

fashioned and finessed its text, the fact remains that words are often an imprecise tool, however well wielded. Added to this is the

impossibility of always foreseeing every situation or combination of circumstances to which a statute may have to be applied. As

Bennion in the introduction to his third edition (p. 3) on Statutory Interpretation observed “The natural and reasonable desire that

statutes should be easily understood is doomed to disappointment. Thwarted, it shifts to an equally natural and reasonable desire

for efficient tools of interpretation. If statutes must be obscure, let us at least have simple devices to elucidate them. A golden rule

would be best, to unlock all mysteries. Alas, ... there is no golden rule. Nor is there a mischief rule or a literal rule, or another cure-

all rule of thumb. Instead there are a 1001 interpretative “criteria”. Fortunately, not all of those present themselves in any one

case; but those that do yield factors that the interpreter must figuratively weigh and balance. That is the nearest we can get to a

golden rule, and it is not very near”.

With a view to addressing the difficulties inherent in statutory construction the common law in the course of its evolution over a long

period of time has identified an extensive range of criteria, usually referred to as canons of construction, referred to above by

Bennion, as efficient objective and neutral aids to the interpretation of statutes. There are also presumptions concerning the

interpretation of statutes such as the presumption of constitutionality, that an act is prospective, the strict construction of penal

statutes and presumption against absurdity. They are, as I have mentioned, intended as efficient and neutral aids to the

interpretation of statutes and are not some sort of standard formulae automatically shaping the result of an interpretative issue. The

use of canons or principles of construction, or any one or combination of them in a given case depends on a variety of factors and

their interplay - the complexity or clarity of the text in issue, whether applicable precedents exist, whether there are fundamental

principles in issue or constitutional considerations - one could go on. The point of departure for the Court is always the actual text of

the statute to be interpreted and it is a matter of judicial appreciation, in the light of submissions from Counsel, which canons or

method of interpretation are appropriate to the nature of the problem which presents itself in the particular case.

Among these well established canons and rules of construction stands the well established rule excluding recourse to parliamentary

debates as a means of interpreting statutes and which has been part of the common law since prior to 1769. Craies at page 128 in his

seventh edition on Statute Law describes this rule as follows, “It is not permissible in discussing the meaning of an obscure

enactment, to refer to ‘the parliamentary history’ of a statute, in the sense of the debates which took place in parliament when the

statue was under consideration. As was said by Willes J in Millar -v- Taylor [1769] 4 BURR. 2303 ‘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. That history is not known to the other house or to the sovereign.’ ”

In Herron -v- Rathmines and Rathgar Improvement Commissioners 27 LR Ir 179 at 257, FitzGibbon L.J. in referring to alterations to a

Bill during its progress through parliament stated “We cannot interpret the Act by reference to the Bill, nor can we determine it’s

construction by any reference to its original form”. In the same case Palles C.B. observed “... I think it is important to ascertain

whether any reason can be ascertained on the face of the Act for this extraordinary divergence between the express provision of

Section 9 on the one hand and that of Section 13 on the other”. “To do so I do not feel myself at liberty to look at the Bill as

presented to Parliament, nor to contrast its original provisions with those which were introduced by amendment.” The dictum of

FitzGibbon L.J. was subsequently cited with approval by Halsbury L.C. when that case was appealed to the House of Lords (1892 A.C.

498).

The judicial aids to the construction of statutes, including the exclusionary rule to which I have just referred, were formulated as a

matter of judicial policy in the light of experience and with a view to enabling the Courts to ascertain, as far as possible, in a useful,

efficient and objective manner the true meaning of the statute in issue. They are not fundamental principles. They are a methodology

of approach to the interpretation of statutes. They may be changed or adapted. In very recent times the classic exclusionary rule

concerning parliamentary debates has not been applied in the traditional manner in a certain number of cases within this jurisdiction

(and I will refer to these later) and the question as to the application of that rule has been once again raised an argument in this

case. There is no rule of law which prohibits a review of a rule of construction. The question is whether it is now appropriate to relax

or set aside that rule. It is not simply a question of whether the rule is set in stone or is too rigid or ought to be more flexible. It is

more a question whether as a matter of judicial policy recourse to debates in the Houses of the Oireachtas should be had generally or

in certain circumstances as a useful, efficient and neutral aid to the interpretation of Acts enacted by the Oireachtas.

This is a question which has to be addressed in the context of our constitutional framework, the role of the Courts in the

interpretation of statutes and the function of the Oireachtas as the legislature of the State. Before going on to address the issue in

that context I wish to refer briefly to experience in other jurisdictions and certain case-law in this jurisdiction.

Other Jurisdictions

Reliance was placed by Counsel on developments in some other common law jurisdictions where the exclusionary rule applying to

parliamentary debates has been modified or fundamentally altered. In some countries such as Canada and Australia changes have

been brought about by legislation reflecting legislative policy with which we are not concerned with here. Particular reference was

made to the position in the United Kingdom following the decision in Pepper -v- Hart [1993] 1 AER 42 and the United States where use

of parliamentary materials in the interpretation of statutory law has been the practice for many decades. While the experience of

those jurisdictions, as found in the judgments of their Courts, are interesting and illustrative, I am doubtful as to their value in helping

to resolve the issue in this jurisdiction. Although questions of principle may and do arise in the consideration of this issue, such as the

role of the courts in interpreting statutes, once general questions of principle are taken into account the issue in any jurisdiction

concerning the use of parliamentary debates is fundamentally a question of judicial policy adopted in the context of its own

constitutional framework in such jurisdiction and whether, having regard to judicial practice and experience such use should be

considered appropriate or useful in that system. A purely analytical approach to judicial pronouncements in the United States or in the

United Kingdom (or elsewhere) would involve evaluating what is good judicial policy or practice in those jurisdictions, something which

I do not consider to be the function of this Court. Nor would it be in a position carry out such an evaluation. What is clearly illustrated

is that a rule permitting the use of parliamentary debates in the interpretation of statutes has not produced a so-called “golden rule”

referred to by Bennion. On the contrary it is a judicial practice which is subject to continuing debate and questioning either judicially

and certainly extra-judicially. It was only in the 1940’s that extensive use of parliamentary history in the United States emerged. It is

a practice that has been regarded by some members of the judiciary there with, at least, some unease. In 1953 Justice Jackson

observed in one opinion “I should concur in this result more readily if the Court could reach it by analysis of the statute than

psychoanalysis of Congress ... That process seems to be not interpretation of the statute but the creation of a statute” (US -v-

Public Utilities Commission of California [1953] 345 US 295). Writing extra-judicially Justice Scalia of the Supreme Court has observed

that the United States has now developed a legal culture in which lawyers routinely make no distinction between words in the text of

a statute and words in its parliamentary history. According to him the resort to parliamentary history has become so common that

reality has overtaken the parody in the popular quip that “one should consult the text of a statute only when the legislative

[parliamentary] history is ambiguous.” He also points out how as a result of this judicial practice in the United States, statements are

specifically prepared in Congress, often at the behest of lobby groups, for the purpose of influencing statutory interpretation by the

Courts. At pages 483 - 485 of his third edition Bennion argues that on a proper construction of the statute in issue in Pepper -v- Hart

recourse to the parliamentary debates ought to have been excluded, a view expressly disagreed with by Lord Bingham in R -v-

Secretary of State for the Environment etc [2001] 1 AER 195 at 211. That is not a debate, if debate it is, which I would wish to

enter upon. Suffice it to say that as regards modifying rules of construction it is essentially for each jurisdiction to decide according

to its own appreciation of considerations of judicial policy in the context of the factors which I have referred to above. Also the

nature of rules of construction as ancillaries to the construction of statutes is such that once a rule is in place whether it is relevant

or applicable in any given case in turn depends on the nature of the particular statute and the interpretative problem which it poses.

Hence the use of any rule of construction as evidenced in judgments of the Courts is rarely other than an ad hoc illustration of its use

rather than a decision in principle. For these reasons it does not seem to me that analysis of judgments of other jurisdictions

concerning these matters would be of great value from the point of view of determining judicial policy in this country on that issue.

Cases in this Jurisdiction:

In support of its submissions, the Appellants relied inter alia on the judgments of Costello, J. in Wavin Pipes Ltd -v- Hepworth Ireland

Co. Ltd the High Court, [unreported, 8th May, 1981] and D.P.P. -v- McDonagh [1996] 2 I.L.R.M. 468 which was a judgment of this

Court. In the former case, Costello J. relied in large measure on the decision of this Court in Bourke -v- Attorney General and Wymes

[1972] I.R. 36 for his view that the classic common law rule, according to which reliance on parliamentary material was excluded for

the purposes of interpreting statutory enactments, should no longer apply. However, the Bourke case was concerned with an entirely

different issue, namely the interpretation of a particular section of the Extradition Act, 1965 which the Supreme Court considered had

been derived from Article 3 of the European Convention on Extradition (Paris, December 1957). For a very long time principles of

common law concerning the interpretation of statutes which give effect to international treaties permit the Courts to interpret such a

statute in the light of the meaning of relevant provisions of the treaty concerned. No doubt this is in part because the intention of

the national legislature is clear - to give effect to provisions of the treaty in domestic law - and the objective consequence of that

intent can be clarified or ascertained, where necessary, by reference to the meaning of the relevant provisions of the treaty, itself a

legal instrument. There is also the consideration that contracting parties to international agreements should seek, as far as possible,

to give uniform effect to its provision in domestic law. Furthermore, with this latter objective in mind, international treaties are

interpreted in accordance with the principles of international law according to which the travaux prepatoires may be consulted for the

purposes of their interpretation (unless such an approach is excluded, expressly, or by implication by the terms of the treaty itself or

if there are no travaux preparatoires available). This common law approach to the interpretation of statutes giving effect to treaties

has existed side by side with the general rule which excludes recourse to parliamentary debates and which Costello, J. then

acknowledged has been extant since 1769 (citing Miller -v- Taylor 4 Burr 2303). This rule, Costello, J. acknowledged, “has been

applied ever since both in England and in this country”. The decision in Bourke -v- Attorney General does not purport to qualify the

common law exclusionary rule as to parliamentary history of statutes.

Perhaps at this point I should expressly refer to a distinction between ‘legislative history’ and ‘parliamentary history’ of a statute - at

least for the purposes of this judgment. In some writings and judgments the former term is used so as to include the latter but in

classic common law tradition that is not the case. As the seventh edition of Craies observes at page 126 “The cause and necessity of

the Act may be discovered, first, by considering the state of the law at the time when the Act was passed. In innumerable cases

the Courts, with a view to construing an Act, have considered the existing law and reviewed the history of legislation upon the

subject”. Craies also observed that it was hardly necessary to cite authorities for this proposition. This is an approach which permits

an Act to be interpreted in the light of its legal historical context and with regard to the provisions of other Acts

in pari materia. This long established approach of looking at legislative history is entirely distinct from that of parliamentary history

where the latter refers to parliamentary debates and what occurred in the passage of a Bill through parliamentary procedures prior to

its enactment. It is in this sense that I use these terms.

As regards the judgment of this Court, delivered by Costello, P, in The People (D.P.P.) -v- McDonagh [1996] 2 I.L.R.M. 469 the

Appellants have relied on the following observations in that judgment; “It has long been established that a Court may, as an aid to

the construction of a statute or one of its provisions, consider its legislative history, a term which includes the legislative

antecedents of the provisions under construction as well as pre-parliamentary material relating to it”. First of all I would observe

that in that case no reliance was placed on or consideration given to parliamentary debates nor indeed to any history of the Act in

issue before the Oireachtas. The observations, therefore, must be regarded as obiter. I also agree with the observations of

Geoghegan, J. in his judgment in the High Court in this case where he stated “The passage from the judgment of Costello, P. which I

have cited begins with the words ‘It has long been established...’. Quite clearly it has not been long established in Ireland that a

Minister’s statement could be used in aid of construction. I do not think that Costello, P. had that in mind at all when he used that

expression”. Of course, one can conclude from the passage cited, as Geoghegan J. went on to remark, that Costello, P. was of the

view that in certain circumstances such a ministerial statement could now be relied upon. That however, was obiter.

Counsel for the Appellants also refer to a number of more recent decisions of the High Court on this issue in which it was considered

that references to parliamentary material was permissible. The reasoning in those cases, for obvious logical reasons, were in essence

based on the cases to which I have referred above or at least one of them. The purpose of my observations on the cases specifically

cited above is to express my conclusion that the question as to whether parliamentary debates may be relied upon as aid to the

construction of statutes cannot be considered to have been definitively decided and no discourtesy is intended in not citing in detail

other cases which have followed such decisions as Wavin Pipes Ltd or D.P.P. -v- McDonagh.

I would just add that it is a common feature of those cases to cite a statement in a judgment of the Supreme Court of the United

States (United States, the American Trucking Association [1940] 310 US 534 at 543) which says “When an aid to construction of the

meaning of words as used in the statute, is available, there certainly can be “no rule of law” which forbids its use, however clear the

words may be on superficial examination.” I confess that I find it difficult to deduce a principle or a judicial policy from this statement

since there is little in the judgment from which the extract is taken which sets out adequate criteria by which such an approach might

be applied. Apart from its rhetorical content the statement discloses an open-ended approach very much in a United States context

which if applied in this country could equally apply to the ‘Heads of a Bill’ submitted to the Government by the promoting department

for the initial decision to proceed with a Bill or a memorandum supporting such a submission, departmental briefings to the

parliamentary drafter or indeed an affidavit from the parliamentary drafter as to what he or she really meant when drafting a Bill. One

could extend the list. The issue in this case requires rather closer scrutiny as to the methodology used by the courts for the purpose

of ascertaining the will of the Oireachtas as expressed in Acts adopted.

In counterpoint to the submissions made on behalf of the Appellants, the Respondents relied on the dictum of Walsh J. in The People

(D.P.P.) -v- Quilligan (No. 1) [1986] I.R. 496, 511, where he stated “Whatever may have been in the minds of the members of the

Oireachtas when the legislation was passed ...” their intention must be deduced ‘from the words of the statute”. Furthermore, in

Howard -v- Commissioner of Public Works in Ireland [1993] I.R. 101, although the admissibility of debates in the Oireachtas was not

directly in issue, Finlay, C.J. stated that “... it would not be permissible to interpretate a statute upon the basis of either speculation

or indeed, even of actual information obtained with regard to the belief of individuals who either drafted the statute or took part as

legislators in its enactment with regard to the question of the appropriate legal principles applicable to matters being dealt with in

the statute”

In that case also Blayney, J. (with whom Finlay, C.J agreed) endorsed the rule expressed in Maxwell on the Interpretation of Statutes

(12th edition p.28) to the effect that “it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament

cannot make the law”.

Clearly a great deal of weight must be given to all the judicial views expressed on this question which underline that the issue here

involves serious questions of judicial policy concerning the interpretation of statutes.

The function of the Legislature:

The legislative organ of the State is the Oireachtas. The Oireachtas consists of the President, and two houses, Dáil Éireann and

Seanad Éireann (Article 15.1.2). Article 15.2.1. declares “The sole and exclusive power of making laws for the State is hereby vested

in the Oireachtas; no other legislative authority has power to make laws for the State”. This is subject only to the power of the

Oireachtas to make provision by law for subordinate legislatures.

The Constitution contains fairly detailed provisions concerning the initiation of Bills in one house and the passing of the Bill by the

other. There are particular provisions for a Money Bill which may, for example, only be initiated in Dáil Eireann. Otherwise any Bill may

be initiated in one house and accepted or passed by the other house. Article 25.1. provides “as soon as any Bill, other than a Bill

expressed to be a Bill containing a proposal for the amendment of this Constitution shall have been passed or deemed to have been

passed by both houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by

him as a law in accordance with the provisions of this Article”.

Sub-Article 2.1 provides “Save as otherwise provided by this Constitution, every Bill so presented to the President for his signature

and for promulgation by him as a law shall be signed by the President not earlier than the 5th and not later than the 7th day after

the date on which the Bill shall have been presented to him” (There is special provision for signing and promulgation of a Bill as law in

a shorter period).

Article 25.4.1 provides “Every Bill shall become and be law as and from the date on which it is signed by the President under this

constitution ...” The next sub Article provides “Every Bill signed by the President under this Constitution shall be promulgated by him

as a law by the publication by his direction of a notice in the Iris Oifigiúil, stating that the Bill has become law”.

Leaving aside the provisions of a Bill expressed to be a Bill for the amendment of the Constitution which falls into a special category

which is not relevant to present considerations, the President may decline to sign and promulgate as law a Bill (other than a Money

Bill) passed or deemed to have been passed by both houses of the Oireachtas if, in the exercise of his or her absolute discretion,

after consultation with the Council of State, he or she decides to refer the Bill to this Court pursuant to Article 26 of the Constitution

for a decision on a question as to whether such Bill or any of its provision are repugnant to the Constitution.

What emerges from the foregoing provisions is essentially self-evident. Only that version of a Bill which is passed or deemed to have

been passed by both house of the Oireachtas and which is signed and promulgated into law by the President is an Act of the

Oireachtas. The Constitution does not assign or recognise any special role for the initiators or promoters of a Bill. The legislative

process consecrated by the Constitution, commencing with the initiation in one or other House of the Oireachtas and culminating with

its signature and promulgation into law by the President, is the means by which the constitutionally expressed will of the Oireachtas is

achieved. It is by laws so adopted and promulgated that the citizens are bound. It is to the text of those laws as promulgated that

they, or their legal advisors, look to ascertain the obligations or rights for which they provide or regulate.

Role of the Courts:

As has often been said by this Court, the Courts are one of the organs of government, the judicial organ of government, referred to in

Article 6 of the Constitution. Included in their role is the task of applying Acts of the Oireachtas in justiciable disputes between

citizens or between a citizen and the State and for that purpose to interpret them. It is frequently said that in interpreting Acts of

the Oireachtas the Court seeks to ascertain the “intent” of the legislature or as Blackstone put it at page 59 of his Commentaries

“the will of the legislature”. The phrase “intent of the legislature” is, on a casual view, ambiguous because it does not expressly

convey whether it is the subjective intent or the objective intent of the legislature which is to be ascertained. Manifestly, however,

what the Courts in this country have always sought to ascertain is the objective intent or will of the Legislature. This is evident for

example from the rule of construction according to which when the meaning of the statute is clear and definite and open to one

interpretation only in the context of the statute as a whole, that is the meaning to be attributed to it. There has never been any

question of examining the statute further in the light of external aids so as to ascertain whether parliament had an intent which it

failed to adequately express, at variance with that to be clearly found in the statute.

The role of the courts in the interpretation of statues, as a matter of principle, is summed up with great clarity by Lord Nicholls in R -

v- Secretary of State for the Environment etc., at 216 (cited above) when he said “Statutory interpretation is an exercise which

requires the Court to identify the meaning borne by the words in question in the particular context. The task of the Court is often

said to be to ascertain the intention of parliament expressed in the language under consideration. This is correct and maybe helpful,

so long as it is remembered that the ‘intention of parliament' is an objective concept, not subjective. The phrase is a shorthand

reference to the intention which the Court reasonably imputes to Parliament in respect of the language used. It is not the subjective

intention of the Minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of

individual members or even of a majority of individual members about the house. These individuals will often have widely varying

intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus

when the Courts say that such and such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under

consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said ... ‘We often say that we are

looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament

used’.”

The principle of objective intent at the root of the role of the Courts in interpreting statutes is, as I have indicated, the same in this

country. The intent of the Oireachtas is imputed to it on the basis of the text of an Act adopted and promulgated as law in

accordance with the Constitution.

Any proposal that the Courts should go behind the constitutionally expressed will of the Oireachtas so as to rely on the statement of

one member of one house, whatever his or her status, must be approached with circumspection and constitutional prudence. To go

behind a will so expressed so as to look at such statement and impute an intent expressed by one member to the Oireachtas as a

whole may, and I use that word guardedly, risk compromising the legislative process and the role of other members of the Oireachtas.

Thus the question as to whether reliance should be placed by the Courts on the parliamentary history of an Act raises considerations

which in my view render the issue sui generis and not to be equated with reliance on other external aids such as reports of

Commissions which give a contextual background to legislative history. The use of such external aids has a different provenance,

gives rise to different considerations and although they too must be relied on with circumspection, we are not concerned with them in

this case.

General Considerations:

It is in the context of the constitutional role of the courts to ascertain the will of the Oireachtas as constitutionally expressed that

the question of judicial policy concerning recourse to parliamentary history, and in particular statements of a minister or other member

of the house, for interpretative purposes falls to be considered. I think it can be fairly said that the primary duty of the Houses of the

Oireachtas is to express the legislative will in the constitutionally prescribed manner in an Act which they adopt. Such a duty would

reflect the universal constitutional principle in a democratic society: Men, and women, may intend what they will; but it is only the

laws which they enact which bind us.

Of course the Oireachtas may, subject to the Constitution, adopt by law rules governing the interpretation of statutes which are the

fruits of the legislative process. One example of this is the Interpretation Act 1937. Section 11 (g) of that Act provides at least one

indication of the unique importance which the Oireachtas itself attaches to the actual text of an Act. That subparagraph provides,

inter alia:

“(g) Marginal notes. “No marginal note placed at the side of any section or provision to indicate the subject, contents or

effect of such section or provision ... shall be taken to be part of the Act or instrument or be considered or judicially

noticed in relation to the construction or interpretation of the Act or instrument or any portion thereof;”

Although marginal notes are to be found on a Bill on its introduction in the Oireachtas, and continued in the Act adopted, the

Oireachtas was nevertheless careful to exclude them from consideration by the Courts, however helpful they might be in some

circumstances, as an aid to interpretation. It might come as a surprise to members of the Oireachtas that a statement of a minister

or other member of the house were to be relied on by the Courts in construing a statute, even as an aid.

A Minister or promoter of a Bill may feel constrained when intervening in the cut and thrust of parliamentary debate to choose her or

his words carefully for fear of giving rise to any misunderstanding as to her or his intent on a subsequent parsing of those words in a

court of law. On the other hand it has been suggested that a clear and deliberate statement on the part of the Minister or other

promoter of the Bill as to the purpose for which it is been introduced could be a helpful aid to interpretation. Apart from other

considerations which I will refer to, there is the foreseeable risk that the promoter of the Bill would feel constrained to make

statements calculated specifically for interpretative purposes, something which has occurred in the United States. Even if a Minister

did not feel so constrained, the fact remains that Ministers or other promoters of Bills do routinely inform the House in question of the

general purposes of the Bill and the reasons for its introduction. Statements, calculated or otherwise, promoting a Bill passing through

a politically contentious process would not necessarily constitute a neutral aid to construction. If the courts were to go behind an

Act and look at the proceedings in the Houses of the Oireachtas and statements made by the promoter of a Bill for the purposes of

interpreting the Act adopted, it would place an onus on other members of the Oireachtas to examine his or her spoken words for its

implications as to the ultimate effect of a Bill when it becomes law. They would have to do so from a perspective which they have

never had to do and which does not currently arise.

As the legislative organ of State the Oireachtas has, subject to the constitution, exclusive responsibility for the conduct of its

proceedings so I refer to these general considerations primarily for the purpose of indicating that any decision to rely on statements

made in one or other House as an aid to the construction of an Act could have implications for the conduct of the legislative process

which is another reason for the Courts to consider this question with prudence.

Counsel for the Appellants in support of his submission that the Court should have recourse to parliamentary materials relied on the

ruling of the learned High Court Judge who, having referred to the decision in The People (D.P.P.) -v- McDonagh stated “The Court

would not be precluded from looking at such ministerial statement or explanation merely because the statutory provision was

unambiguous using the traditional canons of construction. If the statement or explanation supports a construction of the section

which would be just about open under the ordinary rules of construction, but which would not have occurred to the Judge, he is

entitled at least to take it into account. Putting it another way, Counsel is entitled to produce the ministerial statement to the Judge

with a view to persuading the Judge that the view he appears to be taking is wrong.”

On practical grounds alone this is too broad a portal through which to allow parliamentary material to enter into consideration in the

interpretation of Acts of the Oireachtas. It would seem unavoidable that recourse to ministerial statements to confirm, contradict,

verify, strengthen, qualify even nuance a particular construction argued for would enter into most if not every contentious case.

Account would have to be taken of amendments in one or other House subsequent to a statement. It would be a foolhardy if not

negligent lawyer who didn’t at least trawl through the parliamentary interventions of Ministers in one house or both in order to check

whether there was something which supported one interpretation or another. Similar considerations could arise when lawyers,

accountants or other professionals are advising clients, private or corporate, concerning the implications and effect of an Act. This

would be a complex and burdensome exercise - evaluating what weight the courts might attach to this or that sentence or passage in

a Minister’s speech. It would add to legal costs. It is difficult to envisage that a ministerial statement could always be divorced from

the context of a debate as a whole particularly if a different perception of the Bill was expressed by other members who nonetheless

supported the passage of the Bill. That is a situation that one could not exclude. The option of having recourse to ministerial

statements generally in the interpretation of Acts must at least risk introducing uncertainty where none may have existed. As the

learned trial judge observed “In practice, ministerial statements in the Dáil will not usually be of assistance to a court in construing a

statutory provision.” In the instant case the learned trial judge found some indirect support from the ministerial statement for the

interpretation which he attributed to section 2 of the Act but, as he pointed out, it was an interpretation which he had already

adopted independently of the ministerial statement. At best, recourse to ministerial statements as an aid to interpretation would have

limited value in a limited number of cases. The disadvantages of permitting recourse to ministerial statements greatly outweigh

potential benefits. For these reasons I think the submissions on behalf of the Appellants should fail. They should also fail for other

reasons.

The disadvantages concerning complexity and uncertainty, to which reliance generally on ministerial statements could give rise would

not, to my mind, be greatly ameliorated by limiting such reliance only to cases where there is ambiguity in the statute or the need to

avoid a patent absurdity and the ministerial statement is clear and unequivocal. First of all I would recall that there are a wide range

of canons of construction and presumptions available which are more sophisticated and neutral aids to the resolution of such

interpretative problems. Also available are methods of interpretation such as the purposive or teleological approach to statutory

construction.

‘Ambiguous’ is an ambiguous terms itself. Nearly every provision of an Act which becomes a subject of controversy and litigation could

be said to be ambiguous to some extent. How ambiguous does an Act have to be before such a rule came into play? Moreover, a

party contending for ambiguity would perforce be entitled to rely on parliamentary statements if only de bene esse. Frequent reliance

on parliamentary debates would increase the burden and costs of preparing for a trial and often prolong hearings unnecessarily. I have

already mentioned my concurrence with the learned trial judge’s observation that ministerial statements will not usually be of

assistance to the courts in constructing statutes. To put the matter in another perspective the vast majority of cases in which issues

arise concerning the interpretation of a statute arise because the statute falls to be applied to a set of circumstances or a

combination of circumstances, as inevitably happens, not specifically envisaged by the Oireachtas at the time of its passing.

Therefore, there would be no specific intent to be found in the Dáil or Seanad debates.

Reliance on a ministerial statement only when it is clear and unequivocal, would displace the focus of interpretation from the statutory

text to another location namely the wording of that statement.

Even then, if clarity or lack of ambiguity is not achieved in a carefully prepared and drafted Bill or one the text of which undergoes

parliamentary scrutiny at each stage of its passage through the Oireachtas, the occasions on which it would instead be found in a

ministerial statement must, to say the least, be limited.

Having regard to the considerations I have outlined above concerning the role of the Oireachtas recourse to statements of ministers

could have implications for the parliamentary process, I put it no further than that, which the courts should avoid unless there are

cogent and countervailing judicial reasons for doing so. In my view the existence of such cogent or countervailing judicial reasons

have not been demonstrated by the Appellants.

Another disadvantage in this context is that there is nothing before us to indicate that the statement of a Minister in one House is

available or taken into account by the other House when considering the Bill. A Court could have material before it which was never

considered by one House.

Would recourse by the courts to parliamentary statements, even in limited circumstances, have implications for the exercise by the

President of his or her discretion to refer a Bill to the Supreme Court pursuant to Article 26 of the Constitution? I must confess I am

not sure what the answer to that question might be. It is another reason for a cautious approach to changing the existing rule.

The presumption of constitutionality means that as between two or more possible constructions of an Act (or a Bill in an Article 26

reference) the construction that is in accordance with the provisions of the constitution would prevail over any construction that is

not so. (East Donegal Co-operative, 1970 IR 317 and the Adoption (No. 2) Bill, 1987, 1989 IR 656). Consideration of a ministerial

statement which appeared to promote a construction which was incompatible with the Constitution would, it seems to me, conflict

with that well established presumption. Members of the Oireachtas are entitled to rely on this presumption when deciding on matters

of legislation. Going behind the Act and entering the chamber so to speak to look at ministerial statements would give a status to the

promoters of a Bill to the disadvantage of other members of the house which is something this Court should be reluctant to do at

least in the absence of compelling grounds. No such grounds have been shown.

Having regard to the respective roles of the Oireachtas and of the courts and all the considerations which I have mentioned, I am not

satisfied that it has been shown that recourse to ministerial statements as an aid to the construction of statutes is sufficiently

neutral useful or efficient to outweigh, from a judicial policy point of view, the disadvantages or possible inconveniences of abolishing

or modifying the exclusionary rule. I do not in this case consider it necessary to go so far as to say that this should be decided as a

matter of principle.

Maintaining the classical exclusionary rule also has the advantage of avoiding a potentially dangerous dichotomy entering into the

interpretative practice of the courts. The Courts seek the objective intent of the legislator while the purpose of looking at

parliamentary debates as a source of interpretation is to seek the subjective intent. Even in contemporary circumstances applying the

traditional exclusionary rule is more likely to promote certainty in the interpretation of statutes than to dilute it. It also has the

advantage of avoiding any risk that in abolishing or modifying the exclusionary rule the courts might, even unwittingly, affect the

legislative process of the Oireachtas and the role of the members of the two Houses.

The matters to which I have referred are sufficient in my view for concluding as a matter of judicial policy that no sufficient grounds

have been established for abolishing or qualifying at this time the established exclusionary rule concerning recourse to parliamentary

proceedings.

Accordingly no reliance should be made on the statement made by the Minister in Dáil Éireann concerning the purpose of section 2 of

the Act.

As regards the substantive legal issue of interpretation I agree with the judgment of Mrs Justice Denham and with the order which she

proposes should be made.