Pepper v Hart

16.16In what became the seminal case concerning the admissibility of parliamentary debates as an aid to statutory construction, the Appellate Committee of the House of Lords took the opportunity in Pepper v Hart1 in 1993 to re-examine the exclusion. The case concerned the taxable status of a concessionary fees scheme operated by a public school, and turned on the interpretation of provisions of the Finance Act 1976. It came to the court's attention that the ambiguity within the statute on the specific issue before the court could be resolved with reference to extracts from the Official Report as the 1976 Act proceeded through its legislative stages in Parliament. The Appellate Committee sought to hear argument on whether the use of parliamentary proceedings as an aid to statutory construction would infringe article IX. The Attorney General appeared for the Crown to address the privilege issue, submitting that a relaxation of the rule would constitute such an infringement and could have a significant effect on proceedings in Parliament.

The Appellate Committee examined precedents including Pickstone and Brind. Lord Browne-Wilkinson stated that Pickstone represented a ‘major inroad into the exclusionary rule’. His Lordship also considered that the Attorney General's case was significantly weakened by the fact that the Crown had not objected to parliamentary materials being brought into consideration in Anderson Strathclyde or in Brind. In Brind, the Crown had in fact invited the court to look at the Official Report to demonstrate the propriety of the responsible Minister's actions. References to the Official Report for the purposes of judicial review and for the purposes of statutory construction were held to be indistinguishable.

In light of this, Lord Browne-Wilkinson considered that the exclusionary rule which had been most recently applied in Anderson Strathclyde was wrongly decided and in his judgement ‘the use of clear ministerial statements by the court as a guide to the construction of ambiguous legislation would not contravene article 9’. It was held that the exclusionary rule should be relaxed to permit reference to parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon 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; and (c) the statements relied upon are clear.