In the Wake of ‘Good Governance’: Impact Assessments and the Politicisation of Statutory Interpretation
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00698.x |
| Published date | 01 May 2008 |
| Author | Roderick Munday |
| Date | 01 May 2008 |
In theWake of ‘Good Governance’: Impact Assessments
and the Politicisation of Statutory Interpretation
Roderick Munday
n
For some time ‘regulatory reform’ has been a government watchword, and the streamli ning and
improved qualityof regulation its professed ambition. Impact assessments (formerly known as
regulatory impact assessments) are a signi¢cant ingredient in these governmental initiatives,
now promoted by the newly created Department for Business, Enterprise a nd Regulatory
Reform.Just as they have come to referrather freely to the Explanatory Notes thatnow accom-
pany all public Acts of Parliament, judges have also begun to invoke impact assessments when
construing legislation.This paper investigates the extent of this practiceand the manner i nwhich
judges employ impact assessments. It warns of the potential consequences if the judiciary avails
itself too readily of these highly politicised, and sometimesdeceptive, documents.
‘The aim of good prosewords is to mean what they say.’
G. K.C hesterton,Da ilyNews 22 April1905
I
EXPLANATORY NOTES AND THE QUEST FOR CREDIBLE
INTERPRETATIVE AIDS
In an earlier paper I questioned the growing willingness of some judges to
employ the Explanatory Notes that now squire all public Bills on their passage
through Parliament as an aid to interpretation.
1
Explanatory Notes, which are
often less than complete accounts of the legislation they accompany and are scar-
cely designed for minute forensic dissection, in fact disclaim anypretence to hav-
ing been prepared for purposes of statutory construction.
2
Indeed, it is reassuring
that, even when courts do cite these Notes, their accuracy is not ineluctably taken
for granted.
3
Were Explanatory Notesto be routinelyemployedin construing the
legislation they accompany, I have argued that they might lay themselves open to
manipulation by our political masters. It will perhaps be recalled that hot upon
the heels of the House of Lords’ decision in Pepper vHart,
4
which, for the ¢rst
n
Fellowof Peterhouse, Cambridge.
1 See R. Munday,‘Explanatory Notes and Statutory Interpretation’ (2006) 170 JPN124.
2 TheO⁄ce of Public Sector Informationstates clearly:‘The purpose of these Explanatory Notes is
to make the Actof Parliamentaccessible to readers who are not legallyquali ¢ed and who haveno
specialised knowledge of the matters dealt with.They are intended to allow the reader to grasp
what the Act sets out to achieve and place its e¡ect in context.’
3Eg,RvMusone [2007] EWCA Crim 1237; [2007] 1WLR 2467 at [47] per Moses LJ: ‘We do not
think it is necessary to reach any concludedview as to the meaning of ‘substantial’.The judgewas
entitled to take the view that the evidence of the confession was of substantial probative value,
even if a higher probative quality is required than that suggested in the Explanatory Notes.’See
also R(Fudge)vSouthWest Strategic HealthAuthority [2007] EWCACiv 803; (2007) 10 CCL Rep
599 at [48] per Mose s LJ.
4 [1993] AC593.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(3) 385^412
time, allowedthe courts to make restricted use of certain parliamentary materials,
in answer to awritten question in the Upper House, the Lord Privy Seal of the
day acknowledged that ministerial practices had adjusted to take account of the
new interpretative order:
Lord Lester of Herne Hill asked Her Majesty’s Government:
What changes, if any, have been made in governmental and parliamentary practice
and procedure in the light of the decision in Pepper vHart, enabling the courts to
have regard to statements made in Parliament when interpreting the meaning of
ambiguous statutoryprovisions?
The Lord Privy Se al (Viscount Cranbor ne): So far as government practice is con-
cerned, departments havebee n remindedof the importance of statements made by
Ministers during the passage of legislation providing a clear and unambiguous
guide to the aim of the legis lation. A number of other practical steps for the avoid-
ance or correction of mistakes have been recommended in guidance. If it proves
necessary to correct for the o⁄cial record any inadvertent ambiguity or error in
such a statement, thatis done as promptly as possible at an appropriate point during
the further consideration of the Bill. Changes in parliamentary practice and proce-
dure are matters for each House.
5
To the extent that Lord Steyn’s declarations inWestminster City Council vNational
Asylum Support Service
6
would permit courts, after the manner of Pepper vHart,to
resolve ambiguities in Acts of Parliament and to give e¡ect to ministerial pledges
made during thepassage of legislation by resortto the Explanatory Notes,it must
be fearedthat this more considered class of document could a¡ord ministries even
ampler scope to insinuate interpretative pointers for judicial consumption.
On the one hand, it is understandable that courts might easily be induced to
refer to such things as Explanatory Notes. Judges are required to unravel the
intentions of the legislature ^ and that most erudite of humanists, Max Radin,
did once memorably describe legislative intention as ‘a queerly amorphous piece
of slag.’
7
To the extent that government departments publish Explanatory Notes
in order to make draft legislation more intelligible to parliamentarians in the ¢rst
instance, and to a wider ^ and more di¡use, if ill-de¢ned ^ interested public once
the Bill becomes law, the Notes mightbe taken to express one facetof ‘legislative
will’.The relevant governmentdepartment fashions andpromotes the legislation.
Therefore, its easy-to-absorb paraphrasingof all ^ or more likely^ of parts of the
legislation could be takento conveya crisper and moreauthoritative notion of the
thinking that lies behind moot portions of a Bill or eventual Act of Parliament.
On the other hand, if one really must sup with theDevil and equate the inten-
tion of Parliament with governmental political will, it may be an error for
courts to seek to place too great emphasis on Explanatory Notes when teasing
out even this version of ‘the will of Parliament’. Although I have not conducted
5 HL Deb colWA115, 1February 1996.Disturbi ngly, the system is open toman ipulation: In 1994,
during a debate on the Education Bill, a minister was expressly invited to give an interpretation
‘underthe ruling in Pe pper vHart’: see 557H L O⁄cial Report(5th ser ies) col 83.
6 [2002] 1WLR 2956.
7 M. Radin,‘Statutory Interpretation’ 43 Harv L Rev863, 872 (1929^30).
In theWake of ‘Good Governance’
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