Pepper v Hart

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. 

 

Responding to your message

Dear Mr Southerland,

Thank you for your interesting missive regarding the right to bear arms.

I assume you meant it to go to my near namesake, your constituent Mr Barry Woodhams, whose address is appended at the top of your email.

I, however, am Mr Ben Woodhams. I am not your constituent. I live in, and am a citizen of, the UK, where we have no right to bear arms. After a guy went into a school in Dunblane, Scotland, and murdered a class of 5 year-old children in 1996, we even decided that letting people wander around with handguns was probably a bad idea.

Of course, you may feel that a few school shootings here and there are a small price to pay for the ongoing lack of genocide and tyranny in Florida. I do hope they help in that regard, because if they don’t, well, I guess that’s just a bunch of kids dead for nothing, huh?

Regards,

B Woodhams (the other one).

Sent from my iPhone

On 31 Oct 2011, at 22:04, Representative Steve Southerland wrote:

October 31, 2011

Mr. Barry A. Woodhams
Curacao Way
Niceville, FL

Dear Barry,

Thank you for contacting our office regarding the right to bear arms, guaranteed by the Second Amendment of the United States Constitution. I value your input on this important constitutional issue and appreciate the opportunity to respond.

Our country is blessed with freedoms unlike any other nation in the history of the world, and we must fervently defend these freedoms to ensure these liberties are protected into perpetuity. I am deeply committed to the right of America’s law-abiding citizens to own and bear arms. Our Second Amendment is a freedom I have and will continue to fight to preserve.

It is interesting to note that before most great tyrannies and genocides occurred in the world, the citizens of those lands were first disarmed. We must keep a watchful and wary eye toward anything that would take the United States down that same path. As the right to bear arms is a basic right of all American citizens, I am proud to be a cosponsor of the following legislation before U.S. House of Representatives:

o BATFE Reform and Firearms Modernization Act – H.R. 1093, introduced by Representatives Steve King (R-IA) and Jason Altmire (D-PA) would roll back unnecessary restrictions, correct errors and codify longstanding congressional policies in the firearms arena.

o National Right to Carry Reciprocity Act – H.R. 822, introduced by Representatives Cliff Stearns (R-FL) and Heath Shuler (D-NC) would allow any person with a valid concealed carry permit to carry a concealed firearm in any state that issues concealed firearm permits, or that does not prohibit the carrying of concealed firearms.

o Firearms Interstate Commerce Reform Act – H.R. 58, introduced by Representatives Steve Scalise (R-LA) and Dan Boren (D-OK) would remove several antiquated and unnecessary restrictions imposed on interstate firearms business since 1968.

o Second Amendment Enforcement Act – H.R. 645, introduced by Representatives Mike Ross (D-AR) and Jim Jordan (R-OH) would eliminate harsh gun control laws imposed by the District of Columbia after the Supreme Court’s decision in D.C. v Heller (2008).

o Veterans’ Heritage Firearms Act – H.R. 420, introduced by Representatives Dennis Rehberg (R-MT) and Leonard Boswell (D-IA) would provide a 90-day amnesty period during which veterans and their family members could register firearms acquired overseas between June 26, 1934 and October 31, 1968, without fear of prosecution.

Again, thank you for taking the time to contact me. I am humbled and honored you have afforded me the opportunity to represent you in the United States House of Representatives. Please do not hesitate to contact me in the future about issues of importance to you. Feel free to visit my Congressional website at http://southerland.house.gov or contact our office with any future concerns.

Sincerely,

Steve Southerland, II
United States Representative

The Last Time I Saw My Father

My Dad died in 1990. He stumbled out of the bathroom and fell over, and that was that. It was quite prosaic and out of the blue, in as much as a third heart attack can be said to be out of the blue.

You’d think there’d be a straighforward answer to the question, “When did you last see your father?” It sounds a bit zero-sum: it either was the last time, or it wasn’t. There is no in between. But the answer, like reality, is a bit more subtle.

The first last time I saw my father: A week earlier he had asked me to strip the paint off the house sign on the front gate. I had grudingly, half-heartedly set to work with solvent and wire wool. “Leave solvent to work”, the packet said, and so I had – and had completely forgotten to come back and clean it off. So when Dad came to me and said, “That job on the house sign I asked you to do…”, I fully expected a lecture on the value of completing a task and doing it properly. Instead, he just said, “That was a good job. Well done.”

Later that night, after they’d taken his shell away in an ambulance, I ran into his workshop, fighting to hold back the tears. I saw the house sign resting on the worktop, shiny and clean. The tears came, and there was absolutely nothing I could do about anything.

The second last time I saw my father: His shell was lying on a gurney in a small anteroom in the hospital. He looked impossibly large. Heavy. I spoke to him then but, deep down, I knew he wasn’t there and I was alone. As desperately as I wanted to, I could not bring myself to kiss him. Death is contagious.

The third last time I saw my father: He has been dead for two months. We are at some kind of hotel reception in the 1970s. Dark furnishings and smoked glass partitions everywhere. Mood lighting but no windows. Waiters circulate with wine. I walk down the steps to join him, and he turns from some other guests he is entertaining to greet me. The dress code is black tie, and he looks younger and fitter than he has in years. We talk about nothings, as I marvel at the enormous buffet. He is happy, charming and relaxed. He is my Dad. And then I am awake.

If I have ever dreamed about him since, it has always been in the context of childhood, a flashback to when he was still alive. Just that once, though, I saw him again. It’s not important whether anything that had been him was ‘there’ or not. What matters is that I saw him, and it felt real to me. That’s all we can ever say about each other, every day.