Supreme Court rejects appeal on parliamentary debates exclusion, upholding High Court's refusal to consider Hansard for statutory interpretation.

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 on the 11th day of July, 2001 by FENNELLY J.

I agree with the judgment of Denham J on the issue of interpretation of section 2 of the Health (Amendment) Act 1986 and on the

order which she proposes. I also agree with both Denham and Murray JJ that evidence in the form of parliamentary debates should not

be considered by the Court in this case, but I would like to explain my approach to this issue.

The appellant has asked the court to receive in evidence, for this purpose, a statement made in the Dáil by the Minister for Health in

recommending the bill to the House. He said:

“Section 2(1) gives specific power to health boards to make charges for hospital in- patient or out-patient services on persons

injured in road traffic accidents who have received or are entitled to receive damages or compensation in respect of

accidents. The charge payable is not specified but would normally be the average daily cost per bed day in the hospital

concerned. This will vary depending on the hospital involved.”

Geoghegan J took this passage into consideration in the High Court but only to enable him to reach a conclusion on the first argument

advanced by the insurer, i.e. that the charge to be made under the section was not the same as the charge provided for by section

55 of the Health Act, 1970. He had, however, already come to a clear conclusion on this issue. He went on to consider the effect of

the Minister’s speech because of the importance of the point for future cases and in case there should be any doubt about his

interpretation. On the other hand, he declined to consider the rest of the ministerial statement as it was merely indicative of

ministerial policy.

Geoghegan J had prefaced his consideration of the issue by a review of the Irish authorities and a brief reference to Pepper v Hart

[1993] 1 All E.R. 42. He took the view that the Supreme Court had gone much further in People (DPP) v McDonagh ( McDonagh )

[1996] 1 I.R. 565.

There is no dispute that the traditional common-law rule was that, whatever about certain other extraneous materials such as

commission reports, statements made during the progress of a bill through parliament were not admitted in aid of its interpretation

after it had been passed into law. Counsel for the appellant submitted that the situation had now changed to such an extent that, if

this Court declined to depart from that rule it would be unique among common-law jurisdictions.

There are, it seems to me, reasons both of principle and of convenience which plead in favour of caution in modifying the rule, or at

least lean against its unqualified abandonment. I agree with Murray J. that what is at issue is better described as judicial policy rather

than a fundamental principle.

I will commence with the statement of Costello P, when giving the judgment of this Court in McDonagh:

"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 and parliamentary material relating to it. Irish statutes frequently and for very good reasons adopt

with or without amendment the provisions of statutes enacted by the United Kingdom parliament dealing with the same topic

and so the legislative history of Irish statutes may well include the legislative history of the corresponding enactment of the

United Kingdom parliament. It was urged on the appellant's behalf that the court should not consider the legislative history of

s.2 of the 1981 Act because the court can only do so when construing a section which is ambiguous, which this section clearly

is not. I cannot agree with this submission; our courts do not and should not adopt such a rigid exclusionary rule (see for

example Bourke v. Attorney General [1972] IR 36 in which the Supreme Court not only used the European Convention on

Extradition to assist in the construction of the Extradition Act 1965 but also its travaux preparatoires) and it seems to me that

the court should have regard to any aspect of the enactment's legislative history which may be of assistance."

The learned judge then quoted a decision of the US Supreme Court which is discussed below and continued:-

"As legislative history of the section being considered in this case throws very considerable light on its proper construction it

would be wrong of this Court to ignore it."

This statement must now clearly be read in the light of the judgment of this Court in In the matter of Article 26 of the Constitution

..... and ... the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360. It is worth quoting in full the passage from the judgment of

the Court delivered by Keane C.J. on the issue of admissibility of speeches in the Oireachtas in aid of discerning the purpose of

considering the purpose of the provisions which were there at issue. The passage is as follows:

"The written submissions by counsel assigned by the court quoted extensively from speeches made by the minister and other

deputies and senators during the passage of the Bill through both Houses of the Oireachtas. It was urged in the course of

those submissions and the oral submissions that it was legitimate for the court to consider what was said in the course of

those speeches, since in determining whether the measures proposed in ss. 5 and 10 are proportionate to the aims sought to

be achieved, the purposes of the provisions, as made clear by the minister in the parliamentary debates, are relevant.

In considering the extent, if any, to which the courts can have regard to the legislative history of an enactment, certain

distinctions are relevant. It has been the law since Bourke v. The Attorney General [1972] IR 36, that the court may have

regard to the travaux preparatoires for international conventions in considering those conventions where legislation has given

them the force of law in the State. Similarly, there have been cases in which the courts have had regard to reports of

commissions or committees on which the legislation under consideration was based: see McMahon v. Attorney General [1972]

IR 69 and Maher v. Attorney General [1973] IR 140. It can indeed be permissible to look at the legislative history of a particular

provision in general, as explained by Costello P., speaking for this court in The People (Director of Public Prosecutions) v.

Michael McDonagh [1996] 1 IR 565.

The court then quoted part of the passage from McDonagh cited above and continued:

"It should be observed, however, that what was under consideration in that case was whether the court should have regard

to the acknowledged fact that a particular section of an Act of the Oireachtas was in precisely similar terms to a section in an

English Act of Parliament: the court considered that it was legitimate to have regard to the state of the law with which the

English legislation - and, by implication, the Irish legislation - was intended to deal.

It was also held by Costello J., as he then was, in Beecham Group v. Bristol Myers (Unreported, High Court, Costello J., 13th

March, 1981), that the court was entitled to have regard to the Dáil Debates themselves to construe a particular provision in

patents legislation, even though the statutory provision was perfectly clear and unambiguous. It was also held by the House of

Lords in Pepper v. Hart [1993] A.C. 593, that regard could be had to speeches made by ministers during the course of the

parliamentary debates on the measure under consideration by the court. However, it would appear that the view was taken in

that jurisdiction that this was only permissible where the provision under consideration was ambiguous or obscure or a

particular construction would lead to an absurdity.

It is unnecessary, however, for the purposes of this judgment to consider whether a court is entitled to have regard to what

was said by the minister with a responsibility for piloting legislation through parliament in order to ascertain the meaning of a

particular provision and, if so, whether the power to do so can be invoked only where the provision is obscure or ambiguous

or, construed in a particular manner would lead to an absurdity. In the present case, it is conceded that the meaning of ss. 5

and 10 is clear; what is at issue is whether they are repugnant having regard to the provisions of the Constitution.

Even if it can be assumed that the speeches of the minister and other members of the Oireachtas are a safe guide as to what

the purpose of the Oireachtas collectively was enacting the provisions in question, this court is solely concerned with the

meaning of the legislation as actually passed by the two Houses of the Oireachtas. Irrespective of what may have been in the

minds of those individual deputies and senators who voted for the legislation, the two provisions as passed by them are to be

construed in accordance with normal canons of construction: if, as so construed, they are repugnant to the Constitution, the

President must be so advised. If they are not, the President must be similarly so advised. Whatever may be the position in

other cases, this is not a case in which the court can derive any assistance as to the constitutionality of the two sections

from anything that was said concerning them in the course of the debates in the Oireachtas."

This passage prompts a number of observations. Counsel’s purpose in citing Oireachtas debates was apparently to cast light on the

purposes of the legislation. It is not absolutely clear whether a distinction was being made between the meaning and the purpose of a

statutory provision. In other words, parliamentary debates might be admissible to assist in discerning the first but not the second.

The general context of the passage suggests that the court did not make such a distinction. For my own part, I think such a

distinction must be too theoretical to be a reliable guide to the circumstances in which extraneous materials will be admissible, though

there was some discussion of it in one of the English cases to which I will refer. The Court went on to distinguish both McDonagh

itself and the principal authority upon which Costello P had relied, (Bourke v Attorney General). In the latter respect, the Court drew

attention, as does Murray J. in his judgment in this case, to the distinctiveness of the rule permitting resort to travaux préparatoires

when interpreting international agreements.

Treaties are interpreted in accordance with special rules, long recognised in international law and now expressed in the Vienna

Convention on the Law of Treaties of 1969. The fact that those rules, Article 32 in particular, make specific provision for reference to

travaux préparatoires can, of itself, have no bearing on the interpretation of statutes. Article 32 provides:

"Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the

circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine

the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable."

Article 31 states the general rule, according to which, a “treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Moreover, there is cogent

persuasive authority to the effect that resort to these materials should be rare. (Fothergill v Monarch Airlines [1981] AC 251, per Lord

Wilberforce at page 278.)

The court in the Illegal Immigrants case drew attention further to the fact that McDonagh itself was not an authority for the

admissibility of Oireachtas debates, since it was concerned with legislative history in the sense of the usefulness of reference to

similar provision in an English statute.

Next the Court referred to the earlier decision of Costello J in Beecham Group v Bristol Myers. It observed that the learned judge had

had regard to Dáil debates even where the statutory provision under consideration was itself “perfectly clear and unambiguous.” As

the Court noted, this approach would not have been acceptable even under the later approach of the House of Lords in Pepper v

Hart.

The key point, however, is that the Court did not consider that it could derive any assistance from Dáil debates. The meaning of the

provisions was clear. Although the Court did not expressly disapprove Beecham Group v Bristol Myers, it seems to me that it did so

implicitly when it stated that the court was “solely concerned with the meaning of the legislation as passed by the two Houses of the

Oireachtas” and “the two provisions as passed by them are to be construed in accordance with normal canons of construction...”

Where the meaning was clear, it declined to have regard to parliamentary debates. It is true that this pronouncement is qualified by

the phrase, “Whatever may be the position in other cases.” I cannot see any basis for adopting a different approach in “other

cases”, assuming that description to refer to cases other than references by the President to the Supreme Court pursuant to Article

26 of the Constitution. In either event, the meaning of a statutory provision must be ascertained.

Before returning to express my own more general views on the issue, I will refer to a small selection of the material which has been

cited from other common-law jurisdictions.

The United States is perhaps pre-eminent among the common-law jurisdictions in the world. The range of its legal materials is almost

unlimited in its range and its depth. However, it is also notorious that great legal issues are the subject of almost permanent debate

often surrounded by heated controversy. We are not, in our courts sufficiently familiar with US jurisprudence to be in a position

confidently to assert that one or other school of thought represents the accepted position, at least on controversial issues.

Murray J in his judgment delivered today draws attention to the dictum of Justice Jackson in his concurring judgment (though

dissenting on the issue he raises) in United States v Public Utilities Commission of California (1953) 345 US 295:

"I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of

Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in

mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history

should have made on them. Never having been a Congressman, I am handicapped in that weird endeavour. That process seems to

me not interpretation of a statute but creation of a statute."

It seems that there is a long-established practice in the United States, in spite of occasional dissents such as those cited from

Justice Jackson, (and currently Justice Scalia) of considering a wide variety of legislative materials including congressional debates. It

does not appear that the Supreme Court justices are conscious of the existence of any rule of law to the contrary. This emerges

most clearly from the full context of the passage of which part was cited by Costello P in McDonagh from the judgment of the

Supreme Court of the United States in United States v American Trucking Association (1940) US 534 at p 543-544:

"There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature

undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of

the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results,

however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain

meaning did not produce absurd results but merely an unreasonable one 'plainly at variance with the policy of the legislation as

a whole’ this Court has followed that purpose, rather than the literal words. When 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

appear on 'superficial examination.' The interpretation of the meaning of statutes, as applied to justiciable controversies, is

exclusively a judicial function. This duty requires one body of public servants, the judges, to construe the meaning of what

another body, the legislators, has said. Obviously there is danger that the courts' conclusion as to legislative purpose will be

unconsciously influenced by the judges' own views or by factors not considered by the enacting body. A lively appreciation of

the danger is the best assurance of escape from its threat but hardly justifies an acceptance of a literal interpretation dogma

which withholds from the courts available information for reaching a correct conclusion. Emphasis should be laid, too, upon the

necessity for appraisal of the purposes as a whole of Congress in analysing the meaning of clauses or sections of general acts.

A few words of general connotation appearing in the text of statutes should not be given a wide meaning, contrary to a

settled policy, 'excepting as a different purpose is plainly shown." (The part underlined was cited by Costello P in McDonagh)

Obviously this thinking is far removed from the established approach to statutory interpretation in this jurisdiction. In particular, it

would be impossible to reconcile it with the judgments of the majority of this Court in Howard v Commissioners of Public Works [1994]

1 I.R. 101. Blayney J, with whom Finlay C.J. and Denham J agreed, expounded, by reference to authoritative textbooks and case-law,

the traditional rule that the intention of the legislature can be gathered only from the meaning of the words used in the legislation.

Finlay C.J. added:

“I am satisfied that it would not be permissible to interpret a statute on 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 dealt with in the statute.”

Denham J stated:

“If there is a plain intention expressed in the words of a statute then the court should not speculate but rather construe the

Act as enacted .... Dealing with the fundamental concepts, the balancing of rights and powers under the Constitution, the

primary and literal approach to the construction of the statute is appropriate.”

It is, I think, unnecessary to refer to any extent to the views of Australian, New Zealand and Canadian courts. The different

approaches which prevail in those jurisdictions and others have been thoroughly explained in the Consultation Paper of The Law

Reform Commission (CP14-1999): Statutory Drafting and Interpretation: Plain Language and the Law. It seems, for example, that

Australian interpretation legislation gives express power to the courts to give consideration to a wide range of extraneous material

including the speech made in either House of the Australian Parliament by the Minister moving the adoption of a bill on second reading.

In several of the jurisdictions studied, the legislation requires the courts to give large and liberal meaning so as to attain its objects

whether ascertainable from the legislation or not.

However, the jurisprudential development which has received the greatest attention in this jurisdiction in recent years is the decision

of the House of Lords in Pepper v Hart. The underlying issue concerned the taxation of benefits in kind. The taxpayers were teachers.

They were allowed to have their children educated at the school where they were employed for one quarter of the normal fees. This

was a taxable benefit in kind. The legislation provided for taxation on the basis of cost to the employer, but that was ambiguous,

because it was not clear if it should be measured as an average of the entire cost or on the basis of marginal cost of educating an

additional student. The intention of the Minister responsible for proposing the relevant legislation, assuming it to be admissible, was

that taxation should be on the latter basis with the effect that the tax would be either very little or nil. Lord Browne-Wilkinson gave

the leading speech. Since the legislation was ambiguous he proposed a limited modification of the existing exclusionary rule. This

would be subject to three conditions: “(a) legislation is ambiguous or obscure or leads to an absurdity; (b) the material relied on

consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary

material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.”

The obverse of the first criterion is that such evidence will not be received if the meaning is clear. On that principle, the ministerial

statement would not have been accepted by the learned trial judge in the present case. A more fundamental question is whether this

is a workable criterion. In my view it is not. The difficulty is well illustrated by the second and more recent House of Lords decision

cited to the Court at the hearing of this appeal. In R v Secretary of State for the Environment, Transport and the Regions and

others, ex parte Spathe Holme Ltd [2001] 1 All ER 196, the House was divided on the issue of whether the statutory provision was

clear. Furthermore, there was disagreement as to whether the Pepper v Hart rule extended to interpretation of the scope or purpose

of a statutory power or was limited to the interpretation of the meaning of a provision. I have referred to this point earlier in

connection with the remarks of this court in the Illegal Immigrants case. It is right to say, nonetheless, that the House was generally

concerned to see that the Pepper v Hart conditions were strictly respected for fear that the practical inconveniences which had

motivated Lord Mackay’s dissent in that case should materialise.

I will conclude by explaining my reservations about the use of the sort of parliamentary material at issue in this case, i.e. a speech

made during a Dáil debate. It is enough for those purposes to say that they should not be received for the purpose of confirming a

view at which the court can arrive without them. I do not rest my opinion on constitutional considerations. They may - I do not say

that they will - arise if and when the matter has to be more directly addressed and the wider implications of the Court’s opinion in the

Article 26 reference cited above have to be considered. They obviously have not troubled the US Supreme Court in the judgment

cited or the House of Lords when it had to consider the implications in the light of section 9 of the Bill of Rights in Pepper v Hart.

Once the principle is accepted that the courts will look at parliamentary debates – even limited to the speech of the responsible

Minister – it seems to me inevitable that counsel will feel under a professional obligation, by reason of the duty owed to the client, to

investigate that matter in every case. The available material may be considered unhelpful in a great many cases, but at least the

work will have to be done, with inevitable implications for legal costs. It is equally inevitable that in a great many cases the courts will

be asked to consider the fruits of researches so performed. Thus, even though a court is able to interpret a provision without

difficulty in accordance with normal canons of construction, much additional material will have to be reviewed, assessed and judged.

In this respect I share the reservations expressed by Lord Mackay in Pepper v Hart. He said:

"If reference to parliamentary material is permitted as an aid to the construction of legislation which is ambiguous, or obscure

or the literal meaning of which leads to an absurdity, I believe as I have said that in practically every case it will be incumbent

on those preparing the argument to examine the whole proceedings on the Bill in question in both Houses of Parliament.

Questions of construction may be involved on what is said in Parliament and I cannot see how if the rule is modified in this way

the parties' legal advisers could properly come to court without having looked to see whether there was anything in the

Hansard report on the Bill which could assist their case. If they found a passage which they thought had a bearing on the issue

in this case, that passage would have to be construed in the light of the proceedings as a whole."

Both Geoghegan J and all the members of this Court are of the view that the meaning of the section at issue is clear. To admit that

material in such a case would be tantamount to admitting them in a great many cases. It is not possible to lay down in advance a

satisfactory or workable threshold precondition based on the ambiguity of the statutory provision or the decisiveness of the ministerial

statement. One lawyer’s clarity is too often another’s ambiguity. More typically, a party takes as his point of departure that the

provision is clear in his favour. He will thus present the parliamentary debate as an alternative.

Following the cautious example of the Court in the article 26 reference I would not wish to restate the exclusionary rule on any basis

broader than the precise context of the present appeal. In my view, the statement of the Minister should not have been considered.