Statutory interpretation revisited

Hobbits delighted in such things, if they were accurate: they liked to have books filled with things that they already knew, set out fair and square with no contradiction.

-JRR Tolkien, The Fellowship of the Ring

One of the tools of my trade is a knowledge of the principles of statutory construction. I would venture to say that it is an essential part of any lawyer’s toolbox, irrespective of discipline or area of practice. But issues of statutory interpretation arise repeatedly in the law and practice of costs, principally because of the reams and reams of badly drafted, ill thought out procedural rules, which arrive on a continuous basis in this area of work.

And it won’t stop. An article I intend to write later this year will be on the failure of the Woolf Reforms of a quarter of a century ago: which were intended to make procedural rules simpler and hence litigation cheaper. Instead the rules are now longer and more complicated than they were in 1999, and litigation is much more expensive. But still the rules keep coming. On the horizon, is a big expansion of fixed costs, the detail of which will be set out in the Civil Procedural Rules. I do not need to be a prophet, to predict that a significant volume of satellite litigation will surely follow.

A decision of the Supreme Court that caught my eye earlier this year is that of  R v Secretary of State for the Home Department ex parte O [2022] UKSC 3. On the face of it the case has nothing to do with costs, but although context is always important to any decision, what attracted my attention was the exploration of legal principle on matters of statutory interpretation. But the facts of the case were as follows:

1. This appeal raises a question whether subordinate legislation was ultra vires because it set the fee for the exercise by a child or young person of the right to be registered as a British citizen at a level which many young applicants have found to be unaffordable.

2. The facts may be stated shortly, as they were in the judgment of David Richards LJ ([2021] EWCA Civ 193; [2021] 1 WLR 3049), from which I derive this account. The claimant, O, was born in the United Kingdom in July 2007, attends school and has never left the UK. She has Nigerian citizenship, but from her tenth birthday she has satisfied the requirements to apply for registration as a British citizen under section 1(4) of the British Nationality Act 1981 (“the 1981 Act”). As explained more fully below, her entitlement arises because she was born in the UK and has lived here for ten years. She is one of three children who live with their mother who is a single parent in receipt of state benefits. In June 2015 the local authority began supporting O’s family on the basis that they were destitute. An application was made to register O as a British citizen on 15 December 2017. Her mother was unable to raise the full amount of the fee, which was £973 at that time. She was able to raise only £386, which would have covered the administrative cost of processing the application. Because the full fee was not paid, the Secretary of State refused to process the application at that time.

Lord Hodge then embarked upon a restatement of the correct approach to statutory interpretation. His decision repays careful consideration, as it neatly encapsulates the most significant principles derived from many of the landmark cases on statutory interpretation. He also puts in context the principles which may apply when dealing with fundamental or constitutional rights: a significant one being the right of access to justice, which featured so heavily in the Employment Tribunal fees case in the Supreme Court a few years ago. I will also consider the judgment of Lady Arden, which places a different emphasis on the significance of non statutory material when deciding what a statutory provision means. 

Starting with Lord Hodge he observed:

29. The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid of Drem. More recently, Lord Nicholls of Birkenhead stated:
“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”
(R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396).

Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397:
“Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”

In a sense context is everything, but Lord Hodge is using the word in a limited sense, to focus more narrowly on consistency, between statutory provisions, and the statute as a whole to inform meaning. He set out his view on the use of external material to assist in establishing what is meant by a particular provision:

30. External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the  parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.

He returned to the question of interpretation, and how the courts will adopt an objective approach to determining what particular provisions mean:

31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated:
“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective
intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

This important principle is subject to a particular exception: the use of Hansard to inform the meaning of a statute: this is the infamous and controversial rule in Pepper v Hart. I have long had a fondness for that rule. I remember going to Lincolns Inn one Saturday in 1995, to listen to a lecture on the case: at that time reasonably newly minted, and with the potential for much controversy over the limits of the principle. Anyone researching a point in depth, should make recourse to Hansard: everything is easily on line these days:  https://hansard.parliament.uk/.

So it proved, in more litigation over the years, but this case neatly summarises the current limits of the approach:

32. In their written case the appellants sought to support their contention that a child’s acquisition of substantial ties with the UK by spending time in the UK in the first ten years of his or her life created a complete entitlement to citizenship by referring to statements by a Government minister, Timothy Raison, to the Standing Committee which considered an amendment which became section 1(4) to the 1981 Act. Such references are not a legitimate aid to statutory interpretation unless the three conditions set out by Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593, 640 are met. The three conditions are (i) that the legislative provision must be ambiguous, obscure or, on a conventional interpretation, lead to absurdity; (ii) that the material must be or include one or more statements by a minister or other promoter of the Bill; and (iii) the statement must be clear and unequivocal on the point of interpretation which the court is considering. It was not argued, and I am not satisfied, that the first and third conditions are met in this case. The court was not referred to any relevant provision of primary legislation that was said to be ambiguous and the statements in any event did not meet the stringent requirements of the third condition. Sir James Eadie in para 10 of the Secretary of State’s written case referred to a ministerial statement in the House of Lords during the passage of the 2014 Act which sought to explain the policy behind what became section 68 of that Act. But it is not argued that this reference is admissible because the first condition in Pepper v Hart has been met. I am satisfied that there is no such ambiguity, obscurity or absurd result in the relevant statutory provisions which would allow the court to have regard to that statement.

An important principle of statutory construction which was not engaged in this case, lies in the Human Rights Act 1998. Section 3 of that Act states:

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

The current version of the British Bill of Rights promulgated by Mr Raab, will remove that principle from the statute books: see the Bill here Bill of Rights.

How that might unfold in practical terms, is worth a series of posts on its own. Had the Act been deployed in some of the notable costs cases of recent years, certain absurd and discriminatory interpretations to costs rules might have been avoided.

Another important exception or additional principle to the usual approach to statutory interpretation concerns cases where common law rights, which are fundamental or constitutional are engaged. This creates a further principle, that of legality, which again has a particular meaning in this context:

33. Before turning to consider the two cases on which the appellants principally relied in their submissions, it is necessary to observe that, as the appellants accepted in their submissions, this appeal is not concerned with common law rights which have been recognised as fundamental or constitutional nor is it asserted that any Convention rights under the Human Rights Act 1998 are engaged. In a series of cases between the early 1980s and the early 2000s the courts repeatedly recognised the right of unimpeded access to the courts as a fundamental or constitutional common law right, as for example in Raymond v Honey [1983] 1 AC 1; R v Secretary of State for the Home Department, Ex p Leech [1984] QB 198 (CA); R v Lord Chancellor, Ex p Witham [1998] QB 575; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532. Similarly, in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, the House of Lords accorded a similar status to the common law right of freedom of expression. In Simms (above), p 131, Lord Hoffmann described the relationship between parliamentary sovereignty and the principle of legality in these terms:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
More recently, in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46; [2012] 1
AC 868, para 152, Lord Reed stated:

“The principle of legality means not only that Parliament cannot override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.”

Because, as is not disputed, we are not concerned in this appeal with fundamental common law rights, the special rule of construction, which is embodied in the principle of legality, has no application. Similarly, the principle, which Lord Reed articulated in UNISON (paras 80-82) by reference to dicta in the above-mentioned cases of Leech, Simms and Daly, that where a statutory power authorises an intrusion upon the right of access to the courts, it is interpreted as authorising only such degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question, is not relevant as we are here not concerned with such a fundamental right. This conclusion is important when I discuss the judgment of this court in UNISON, to which I now turn.

Access to justice is a golden thread that flows through costs law, and is worth remembering when considering whether reforms, which may be will intentioned or not, have the effect of impeding access to justice: this is not of course, to be equated simply with reducing the remuneration of lawyers, an aspect of policy that particularly interests them.

Lord Hodge moved onto consider the assumptions, sometimes referred to as presumptions which also inform the principle of objective ascertainment of Parliamentary intention noted above:

41. In performing that interpretative task, the court has regard to well-established prima facie assumptions. It is an aspect of the principle of legality that Parliament is assumed to take for granted long-standing principles of constitutional and administrative law and a statute is to be interpreted accordingly: R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 587-588 per Lord Steyn. Thus, for example, where Parliament confers an administrative power there is a presumption that it will be exercised in a manner that is fair in all the circumstances: R v Secretary of  State for the Home Department, Ex p Doody [1994] 1 AC 531, 560 per Lord Mustill. These and other assumptions or presumptions are part of the tools used by the courts in the interpretation of statutes. The weight to be attached to such presumptions will vary depending upon the circumstances of the case and the nature of the rights affected by the legislation under consideration.

Returning to the principle of legality:

43. Where the court is not dealing with an interference by statute with a common law constitutional right or with a statutory provision which declares such a fundamental or constitutional right, the normal canons of statutory interpretation apply. This is as it should be because Laws J was surely correct in his observation that it was necessary to keep within narrow bounds the category of rights that were properly classified as fundamental or constitutional. In R v Lord Chancellor, Ex p Lightfoot [2000] QB 597, 609B-D he stated:
“… the law should be astute to confine the concept of constitutional right to that special class of rights which, in truth, everyone living in a democracy under the rule of law ought to enjoy. … If the courts were to hold that more marginal claims of right should enjoy the protection of a rigorous rule of statutory construction not applied in contexts save that of the protection of fundamental rights and freedoms, they would impermissibly confine the powers of the elected legislature.”

In this appeal the court is not dealing with a vested right at common law or under statute but with a statutory procedure for registration by which a person can acquire British citizenship and the important rights which it confers by making an application which is subject to conditions specified by Parliament. In this context the rigorous rule of statutory construction of which Lord Hoffmann spoke in Simms and which Lord Reed described in AXA (para 33 above) is not in play.

Lady Arden then gave a concurring judgment which gave far more prominence to the use of extra statutory material, than Lord Hodge:

60. Lord Hodge prefaces paras 30 and 31 of his judgment by recalling in para 29 the observations of Lord Nicholls in Spath Holme at p 397 about what I will call “the legal certainty issue”. One of the problems in the court using pre-legislative material, Lord Nicholls explained, is that it makes it more difficult for a citizen to know what a statute means if the court has been influenced by external material and it is not readily available. This reason no longer applies to explanatory notes accompanying Acts of Parliament or explanatory notes appended to statutory instruments. These are often published by commercial publishers alongside the Act or statutory instrument. They are in any event available online without charge at https://www.legislation.gov.uk which is the official, web-accessible database of UK statute law. It is managed by The National Archives on behalf of the UK government. The database was not operational when the House of Lords decided Spath Holme. Explanatory notes were introduced following the Second Report of the Select Committee on Modernisation of the House of Commons (HC 389, 1997-98), which annexes a useful paper by the First Parliamentary Counsel, Christopher Jenkins CB, QC, explaining the reasons for proposing the introduction of explanatory notes. The report of the Select Committee on Modernisation expressly recognised that the courts might wish to use explanatory notes as a guide to Parliament’s intentions in passing a particular piece of legislation (para 37).

62. The legal certainty issue leads Lord Hodge to the view that explanatory material must play a secondary role in interpretation. He puts explanatory notes prepared under the authority of an Act of Parliament into a different category from Law Commission reports, reports of Royal Commissions and advisory committees and Government White Papers. He states that the former may cast light on the meaning of a particular statutory provision whereas the latter disclose the background and help the court to identify both the mischief which the legislation addresses and its purpose, thereby assisting a purposive interpretation of a particular statutory provision.

63. I agree with Lord Hodge that such material is relevant to assist the court to ascertain the meaning of the statute, whether there is or is not ambiguity or uncertainty, and indeed may reveal ambiguity or uncertainty.

But Lady Arden goes further:

64. The next sentence in para 30 of Lord Hodge’s judgment reads:

“But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.” I would put it this way. There are occasions when pre-legislative material may, depending on the circumstances, go further than simply provide the background or context for the statutory provision in question. It may influence its meaning. This is borne out by Spath Holme, where Lord Nicholls held:

“Nowadays the courts look at external aids for more than merely identifying the mischief the statute is intended to cure. In adopting a purposive approach to the interpretation of statutory language, courts seek to identify and give effect to the purpose of the legislation. To the extent that extraneous material assists in identifying the purpose of the legislation, it is a useful tool.” (p 397)

65. While external material is likely to contribute to the court’s knowledge of the context of and background to the statute to be interpreted and its appreciation of its purpose, matters do not always stop there. In some but not all cases, its use may go further. This is exemplified by contrasting two situations, first, the situation where the external material deals with proposals which did not find their way into the statute. This material may provide information of value about the context of and background to the legislation but is not likely to be of further use. The second example I have in mind is where perusal of the external material reveals that the language of the statute – perhaps initially thought to be clear on its face so as not to need any further inquiry – is in fact ambiguous. Here the external material has a use which goes beyond the provision of background and context.

She concluded:

76. In my judgment it is realistic also to recognise that pre-legislative material, where available, may inform the court about an ambiguity which was not apparent simply on the face of the words, the mischief to which the legislation was directed and the purpose of the provision, and may in an appropriate case influence the meaning of the statutory provision. The use of pre-legislative material in an appropriate case in one of these ways, mindful always that statutory interpretation must be consistent with the courts’ relationship with Parliament, is an integral part of modern statutory interpretation. Moreover, the use of pre-legislative material in the ways I have described supports and strengthens the task of giving the correct meaning to the words that Parliament has used.

This case, dealing with particular aspects of immigration law, is a useful mine of quotations when one has to argue a point of statutory interpretation. As the web of fixed costs is likely to increase with multiple strands of statutory provision, catching solicitors in its depths, a recourse to key principles of statutory interpretation is likely to prove fruitful. It will assist when constructing arguments in the satellite litigation on fixed costs to come as to why certain provisions apply or do not apply, or certain exceptions can be relied upon or not.

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