Pepper v Hart

Posted: November 17, 2013 in Uncategorized

IT’S ONLY AS GOOD AS WHAT YOU DO WITH IT

Granularity should be determined by utility: what is it useful for?

Much is made of parliamentary data as though it were an end in itself, and there is a sense in which some documents are. Hansard is an account of what was said by those who act on our behalf in, among other things, holding the Government to account. But it also has a specific legal function. Since the landmark ruling in Pepper V Hart, 1992, clear ministerial statements made in Parliament can be used to guide interpretation of the law. In simple terms, if a law is ambiguous, the courts can look up what a Minister said about it in Hansard to decide what it means. 

The tone of much parliamentary legislative debate is set by this ruling. Many Peers, for example, table “probing amendments”, to examine the Government’s view of the effect of removing some provision or other from the Bill. Asking “What would happen if we did this instead?” lends insight into what would happen if you didn’t, because the Minister is forced to defend the Government’s proposed laws and outline exactly what they mean.

However, this legal precedent has been undermined in recent years, following an influential lecture given by Lord Steyn in 2000, in which he argued that Pepper V Hart may have been misinterpreted and didn’t, for various technical reasons, make sense either way. One repeated criticism of Pepper v Hart has been the expense involved in having barristers look up debates in Hansard. This concern was voiced in discussions on the original ruling by Lord Mackay:

“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 … 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”.

 That is, getting barristers to look things up is expensive.

A lot has changed since 1992, and few things more than the idea of looking stuff up being a difficult, time-consuming and expensive skill. Unfortunately, Google is not a panacea. It’s not very good at cross-referencing unreferenced material. That requires the human touch – so far. This cost acts as a brake on the implementation of and access to legal redress, as well as to an oft-cited justification of access to the parliamentary record. 

 One way of addressing this would be to cross-reference all legislation – that is, Acts and statutory instruments such as orders and regulations – with the relevant debates in Hansard. Or, at the very least, to institute a parliamentary data mechanism that made it relatively simple to do so. 

 This would require a website not unlike legislation.gov.uk, with the text of legislation additionally annotated with links to dependent documents: debates on amendments to the legislation as it passed through Parliament. 

Such debates take place in various contexts:

Commons/Lords

Committee/Report/Third Reading

 And various things can happen to an amendment:

Agreed/Withdrawn/Not moved

It would be necessary to tag the relevant portion of an Act – Section, subsection, paragraph – with any amendment number that affected or clarified it when it was a Bill. The distinction between “affected” and “clarified” is important, because while not all amendments affect the text of the Bill, even if they don’t (which is most of them) the debate upon them may be useful for the purposes of Pepper V Hart.

Scraping the text of Hansard debates can generate data on which amendments were moved, debated, withdrawn, not moved, agreed or, with a Division, disagreed. Unfortunately, many amendments are debated in a “group” – the lead amendment is on the Table, and amendments dealing with similar topics are debated at the same time, often in some detail. That means that there can be substantive debate on an amendment which may or may not change the Bill but almost certainly illuminates the intention behind legislation for the purposes of Pepper V Hart, and which hardly touches the sides in terms of mark-upable procedure. Such problems can be addressed by structuring the data according to the amendment groupings lists for a given day of debate. 

 The website would present an Act’s text, with portions of the text highlighted in green, red  or purple (according to whether the text was discussed by the Commons, Lords, or both). A hover-over could quickly offer basic details, such as at what stage the text was discussed, and clicking would launch a new tab with details of the Section’s legislative history, with click-throughs to the relevant Hansard debates. 

Note that some legislation is retrospectively amended by the Schedules of other Acts – so some legislative text would link through to debates nominally on completely different Bills. 

 

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