R (Westminster City Council) v National Asylum Support Service

JurisdictionUK Non-devolved
Judgment Date17 October 2002
Neutral Citation[2002] UKHL 38
Date17 October 2002
CourtHouse of Lords
Westminster City Council
National Asylum Support Service

[2002] UKHL 38

Lord Steyn

Lord Slynn of Hadley

Lord Hoffmann

Lord Millett

Lord Rodger of Earlsferry



My Lords,


I have had the advantage of reading the opinion of Lord Hoffmann. I share his view that this case should be decided on narrow grounds. I confine myself to expressing agreement with the views expressed by Lord Hoffmann in paragraph 49 of his opinion. I therefore agree that the appeal should be dismissed.


There is, however, a point on which I want to comment. It relates to the status of Explanatory Notes which now accompany most public bills in their progress towards enactment by Parliament. The Explanatory Notes to the Immigration and Asylum Act 1999 were placed before the House and relied on as arguably assisting in the interpretation of sections of the Act. Lord Hoffmann has not relied on this material. I would also not do so in this case. On the other hand, since Explanatory Notes are now sometimes placed before the House, it would be sensible to clarify their status.


The background is as follows. Brief explanatory memoranda used to be printed at the front of a Bill. Such a document was a pr=E9cis and did not provide background. In addition ministers were provided with Notes on Clauses, which did by and large explain what a clause in a Bill was meant to do. Later, in an era of greater transparency, Notes on Clauses were made available to backbenchers.


In 1999 a new system was introduced. It involves publishing Explanatory Notes alongside the majority of public bills introduced in either Houses of Parliament by a Government minister: see Christopher Jenkins QC, First Parliamentary Counsel, "Helping the Reader of Bills and Acts" (1999) 149 NLJ 798. The texts of such notes are prepared by the Government department responsible for the legislation. The Explanatory Notes do not form part of the Bill, are not endorsed by Parliament and cannot be amended by Parliament. The notes are intended to be neutral in political tone: they aim to explain the effect of the text and not to justify it. The purpose is to help the reader to get his bearings and to ease the task of assimilating the law. This new procedure has the imprimatur of the House of Commons Select Committee on Modernization and the House of Lords Procedure Committee. The Explanatory Notes accompany the Bill on introduction and are updated in the light of changes to the Bill made in the parliamentary process. Explanatory Notes are usually published by the time the legislation comes into force. Unlike Hansard material there are no costly researches involved. Explanatory Notes for both Bills and Acts are published by Her Majesty's Stationery Office. The notes are also available on the internet at: http://www.parliament.uk for Bills and http://www.legislation.hmso.gov.uk for Acts.


The question is whether in aid of the interpretation of a statute the court may take into account the Explanatory Notes and, if so, to what extent. The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen. In regard to contractual interpretation this was made clear by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-1386, and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, 995-996. Moreover, in his important judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913, Lord Hoffmann made crystal clear that an ambiguity need not be established before the surrounding circumstances may be taken into account. The same applies to statutory construction. In River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763, Lord Blackburn explained the position as follows:

"I shall … state, as precisely as I can, what I understand from the decided cases to be the principles on which the courts of law act in construing instruments in writing; and a statute is an instrument in writing. In all cases the object is to see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without inquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view; for the meaning of words varies according to the circumstances with respect to which they were used."

Again, there is no need to establish an ambiguity before taking into account the objective circumstances to which the language relates. Applied to the subject under consideration the result is as follows. Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated as admissible: see Cross, Statutory Interpretation, 3rd ed (1995), pp 160-161. If used for this purpose the recent reservations in dicta in the House of Lords about the use of Hansard materials in aid of construction are not engaged: see R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 407; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, The Times, 26 July 2002, in particular per Lord Hoffmann, at paragraph 40. On this basis the constitutional arguments which I put forward extra-judicially are also not engaged: "Pepper v Hart: A Re-examination" (2001) 21 Oxford Journal of Legal Studies 59.


If exceptionally there is found in Explanatory Notes a clear assurance by the executive to Parliament about the meaning of a clause, or the circumstances in which a power will or will not be used, that assurance may in principle be admitted against the executive in proceedings in which the executive places a contrary contention before a court. This reflects the actual decision in Pepper v Hart [1993] AC 593. What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.


My Lords,


The unchallenged facts of this case and the legislative provisions are fully set out in the judgment of Stanley Burnton J.


Mrs Y-Ahmed and her daughter came to the United Kingdom on a visit to her son. Following initial treatment in St Mary's Hospital, Paddington, she made a claim for political asylum as a Kurdish/Iraqi living in Kuwait. The case has proceeded on the basis that that was a genuine claim and the Home Office on the 22 March 2002 gave her and her daughter indefinite leave so that since then she has not been subject to immigration control or seeking asylum here. It is, however, plain that when she first sought asylum the cancer from which she suffered made medical attention and other care necessary. She did not have accommodation or the means for providing herself and her daughter with accommodation and she needed accommodation of two rooms near to St Mary's Hospital with wheelchair access and room for a carer to look after her physical needs.


Which public authority, if any, should provide or pay for this accommodation was a matter of dispute. The respondent, National Asylum Support Service, as a part of the Home Office said that this was Westminster City Council's liability. Westminster City Council said that National Asylum Support Service must pay. The authorities recognised that this was an important case partly because of the difficulty of reading together provisions of the National Assistance Act 1948 and the Immigration and Asylum Act 1999 and regulations made thereunder, partly because of the potential impact of the decision on this question on a large number of other persons subject to immigration control and in particularly asylum seekers. Westminster City Council assessed Mrs Y-Ahmed's needs and is to be commended for having arranged and paid for her and her daughter's accommodation pending the resolution of this question. Stanley Burnton J and the Court of Appeal recognised that the question was not an easy one and in view of earlier decisions from the Court of Appeal and of first instance judges to which they referred, it was important that the matter should have come before your Lordships' House.


Section 21(1) of the 1948 Act provided that a Local Authority "with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing:

"(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."

The Secretary of State gave a general direction that local authorities should make arrangements for persons ordinarily resident in their areas or in urgent need to be provided with care and...

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