Secretariats website

Use of  Hansard in Construing Statute

32.1 Following the decision of the House of Lords (in Pepper v Hart [1993] All ER 42) the courts may, in certain circumstances, look to Parliamentary material as well as to the text of the statute itself when construing legislation. The implication of Pepper v Hart is that courts may do this if three conditions are satisfied:

• the legislation is ambiguous or leads to an absurdity;
• the material relied upon consists of a statement by a Minister or other promoter of the Bill, together with such other Parliamentary material as was necessary to understand that statement; and
• the statements relied upon are themselves clear.

32.2 Since clarity and the avoidance of ambiguity are key objects in the drafting of legislation, the procedure adopted in Pepper v Hart should remain very much the exception rather than the rule. Nonetheless departments should bear this possibility in mind and exercise great care in drafting material for use by Ministers which may find its way into the record of debates in either House (including their Committees) and, if necessary, find a satisfactory method for correcting any significant mistakes or ambiguities which appear in such records. Bill teams should follow the steps below.

32.3 As far as possible speeches and speaking notes should be reviewed by the Bill team's legal advisor and Parliamentary Counsel for possible influence on interpretation. (Different arrangements for legal advice apply to Finance Bills.) The legal advisor should always attend relevant Parliamentary proceedings of the Bill as part of Ministers' official support and clear all speaking notes before they are passed to Ministers.

32.4 Officials should take care in providing impromptu advice on interpretation in order to assist a Minister to answer a point raised during proceedings on a Bill. Where possible, Ministers might be invited to offer to reflect on a point and reply on a future occasion.

32.5 The Bill team and their legal adviser should always review the Hansard record of Ministers' contributions to a debate and consider whether there is any inaccuracy or other hostage to fortune.

32.6 Ambiguities or inaccuracies in the wording of legislation should always be put right by amendment where this is possible.

32.7 References to the Pepper v Hart judgment in Ministerial statements are best avoided as this could be taken to imply that the provision of the Bill being debated is indeed ambiguous.

32.8 If it is considered that the official record cannot be allowed to stand, Ministers should be advised accordingly and asked urgently to consider what action should be taken. Ministers will need to make a judgement, in the light of the official and legal advice, on whether and how to clarify the record. Factors influencing this judgement might include the possible effect on interpretation and implementation of the legislation, the desirability of precision in the particular circumstances of the case, and the political and handling implications of re-opening issues which may be controversial. The Government Whips' Offices and Parliamentary Counsel should always be consulted about a proposal to correct the official record during proceedings on the Bill.

32.9 Where it is decided that the record needs to be corrected during the passage of the Bill, this should be done at a time and in such a way that it would be clear to the courts in the future that Parliament was aware of the matter before passing the Bill. The timing and manner of any Ministerial correction required during proceedings on the Bill should be discussed with the departmental Whip. The approach adopted may vary depending on the importance of the matter, the stage which the Bill has reached and the nature of the proceedings during which it is proposed that the correction should be made. The correction should contain a column reference to the Hansard record of the original statement.

32.10 Where a Ministerial correction is made in this way it would be helpful if a cross-reference could be inserted at the Hansard record of the original statement. This may be possible if the correction is issued in time to be reflected in the bound volume of Hansard. This point should be discussed with the Hansard authorities.

32.11 Where a Ministerial correction is made after the Bill has been passed by the House it is unlikely that the courts will take it into account. This makes accuracy particularly important during the later stages of Bills.

32.12 Although letters to individual Members of Parliament will not be an effective way of correcting statements in Parliament about the meaning of Bill provisions, they may still be appropriate as a way of giving or correcting factual information or of answering points raised in debate.

32.13 In addition, the courts are likely to show interest in the Explanatory Notes.