Interpretation of Legislation in England: The Expanding Quest for Parliamentary Intention

Statutory interpretation is concerned to tease out »the intention of the legislature« from even the most opaque enactments. English methodology underwent a first sea change in the 1970s, when the courts abandoned traditional, literal methods for a more purposive approach to statutory interpretation, and a second in the early 1990s when, in Pepper v. Hart, the House of Lords overturned English law's obdurate opposition to courts using parliamentary materials when construing statutory provisions. As a consequence of this altered climate, when courts are confronted with ambiguous or unclear wording in legislation, the search for authoritative guidance has led them to explore new sources. In particular, the Explanatory Notes that accompany legislation as it passes through Parliament and departmental Impact Assessments that foreshadow legislation, analysing the potential value of such projects from a policy perspective, have regularly been invoked both in legal argument and in judicial reasoning. Such developments are unwelcome, particularly from a constitutional perspective. Currently, English constitutional arrangements are in a highly unsettled state. It is widely known, for example, that reform of Parliament's Upper Chamber has been a thorn in every government's side since 1997, when New Labour swept to power. Far more ominous, however, is the fact that for some time the executive arm of government has been in the plain ascendant, with the elected Parliament's role increasingly reduced. Against such a backdrop, it brings little comfort to see English judges, when interpreting legislation, turning to sources close to the executive. One is tempted to wonder whether the well-intentioned switch to a purposive methodology has been wholly beneficial.