© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Interpreting legislation to deal with modern developments
The principle
- Legislation should be interpreted to cover new and unforeseen developments if they fall within Parliament's policy intention
"[29] What is meant by the always speaking principle is that, as a general rule, a statute should be interpreted taking into account changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and changes in the law. Very importantly it does not matter that those changes could not have been reasonably contemplated or foreseen at the time that the provision was enacted. Exceptionally, the always speaking principle will not be applied where it is clear, from the words used in the light of their context and purpose, that the provision is tied to an historic or frozen interpretation. A possible example (referred to by Lord Steyn in R v Ireland at p 158) is The Longford (1889) 14 PD 34 where the word “action” in a statute was held not to be apt to cover an Admiralty action in rem: at the time the statute was passed, the Admiralty Court “was not one of His Majesty’s Courts of Law” (p 38).
[30] The great merit of the always speaking principle is that it operates to prevent statutes becoming outdated. It would be unrealistic for Parliament to try to keep most statutes up to date by continually passing amendments to cope with subsequent change." (News Corp UK & Ireland Ltd v. HMRC [2023] UKSC 7)
"[9] There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of "cruel and unusual punishments" has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so. The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language: see Bennion, Statutory Interpretation, 4th ed (2002) Part XVIII, Section 288. A revealing example is found in Grant v Southwestern and County Properties Ltd [1975] Ch 185, where Walton J had to decide whether a tape recording fell within the expression "document" in the Rules of the Supreme Court. Pointing out (page 190) that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that the tape recording was a document." (R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, Lord Bingham)
"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, "What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?", attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself." (Royal College of Nursing of the UK v Department of Health and Social Security [1981] AC 800 at 822, Lord Wilberforce)
Limits
- Cannot speak with two voices at once
"[25] Why then should the subsection be given a different meaning when the time limit is invoked in the context of a claim relating to the operation of an equality clause which relates to a period of employment prior to the date of a TUPE transfer? It is true that s.2(4) of the 1970 Act was enacted before the coming into effect of the Acquired Rights Directive and, consequently, before the making of the TUPE regulations which transferred all the transferor's rights, powers, duties and liabilities under or in connection with the contract of employment to the transferee but left any rights, powers, duties and liabilities under or in connection with an occupational pension scheme with the transferor: see regs. 5(2)(a) and 7(1)(b) of TUPE. But I do not think that the subsection can be taken to mean different things depending upon the part of the TUPE arrangements to which the claim relates.
[26] It is often said that a statute is always speaking. This is so, and where the language permits there is this element of flexibility. It can be adapted to contexts that were not foreseen when it was enacted. But the metaphor must not be pressed too far. A statute cannot speak with two different voices at one and the same time. The rule that s.2(4) originally laid down was that a claim in respect of the operation of an equality clause must be brought within six months of the end of the employment to which the claim related. It applied to each and every claim that might be made in respect of the contravention of a term modified or included by virtue of an equality clause: see reg. 2(1). The same rule must be applied where there has been a TUPE transfer. The only question is: to which employment does the claim relate? The answer, where the claim is in relation to the operation of an equality clause relating to an occupational pension scheme before the date of the transfer, is that it relates to the woman's employment with the transferor." (Powerhouse Retail Ltd v. Burroughs [2006] UKHL 13)
- Not applied where wording is strict
"[64] Applying Lord Wilberforce's test, the National Assembly of Wales would fall within the "same genus of facts" as the other legislatures that are expressly mentioned in Note 8, and for the reasons I have given above there would be a "clear purpose in the legislation" that would be fulfilled by reading in the National Assembly of Wales. However, I have reached the view that the "strictness" of the words of Note 8, with the definition of "Act" formulated as a prescriptive list, does not allow "an Act or Measure of the National Assembly for Wales" to be read into Note 8.
[65] As such the always speaking principle does not assist HMRC in this case." (Cascade Care Limited v. HMRC [2025] UKFTT 1332 (TC), Judge Blackwell)
- Not construed by reference to subsequent event which were not foreseeable and entirely workable at the time of enactment
"[39] I take the view that one can apply the "always speaking" approach to statutory construction to the provisions of the Schedule to the CFO, although we are not called upon on this appeal to express any view as to whether, so interpreted, they were satisfied by airlines other than Ryanair in the period under review. But I am also satisfied that, whether or not they can be so interpreted, the correct approach to construction is not to delete Notes (5)(b) and (6) from the Schedule. Lord Pannick's point that some support for Ryanair's construction can be derived from the present impossibility of literal compliance with the conjunction tickets provisions is, I think, misplaced. The CFO cannot be construed by reference to subsequent events which were not necessarily foreseeable in 1994 and, when looked at in the context of the ticketing practices at that time, its provisions were entirely workable." (Ryanair Limited v. HMRC [2014] EWCA Civ 410)
- Not applied to a technical term defined by statute (rather than ordinary words)
"[104] On the basis that “registered medical practitioner” is a technical term defined by statute, we also agree that there is no room to apply the “always speaking” principle which applies to situations where the law has not kept up with the development in meaning of ordinary words.
[105] For these reasons we conclude that, applying normal UK principles of statutory construction, Dr El-Khourabi was not an “appropriate practitioner” within the meaning of Note 2B so that medical supplies dispensed on his perfectly lawful prescriptions were not entitled to be zero-rated." (Pearl Chemist Limited v. HMRC [2019] UKFTT 264 (TC), Judge McKeever)
Examples
- Applied subject to EU law constraints in relation to VAT
"Turning to the application of the always speaking principle that is at the heart of this appeal, it is clear that, in this case, that principle has to be applied having regard to the EU law constraints imposed by the standstill provision and the principle of strict interpretation of exemptions. As explained above, that is reinforced by a purpose of the law on VAT, as seen from the perspective of EU law, as being harmonisation with no derogations. Here these constraints mean that the always speaking principle is significantly limited so as to ensure that it does not conflict with the requirement for zero-rating for newspapers to be strictly construed and not extended." (News Corp UK & Ireland Ltd v. HMRC [2023] UKSC 7)
- Reference to booklet to include e-tickets
"[103] The parties agree that legislation which has not kept pace with technological change must be construed in accordance with “always speaking” principles—that is, it is necessary to ascertain what it is that Parliament intended and apply the words used, in a manner which respects that intention, to (in this case) a technique for documenting the right to take a flight not contemplated by Parliament in 1994, albeit, as s 43(1) shows, a “document” and, correspondingly, a “ticket” need not consist of paper.
[104] The move from paper to electronic tickets is only one example of such an unforeseen change; another is the scientific advance in human genetics which was the subject-matter of R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687...
...
[133] We are satisfied that the CFO imposes two discrete conditions which must be met if the exemption is to apply. The purpose of the second, the ticketing condition, is to prescribe the method by which it is to be demonstrated that the two (or more) flights said to be connected make up a single journey. Accordingly we answer the first of the questions transferred to us from the First-tier Tribunal as follows:
Properly construed, the relevant legislative provisions stipulate that two flights are connected for the purposes of the application of the connected flights exemption only if (a) the interval between the flights satisfies the relevant temporal condition and (b) the customer has, or can readily access, a ticket or tickets, or their electronic equivalents, which provide all of the prescribed particulars of each flight sufficient to show, by their referring to each other or by means of a shared PNR or in a similar manner, that together they constitute a single journey." (Ryanair Limited v. HMRC [2013] UKUT 176 (TCC), Warren J and Judge Bishopp)
VAT reference to newspapers not read to include digital news services
"[58] In our view, therefore, having regard to the constraints of EU law, the always speaking principle cannot be applied so as to interpret newspapers as covering digital editions. This is not to close off entirely the operation of the always speaking principle in this context. So, for example, it is not in dispute that new versions of print newspapers, eg produced by computer rather than hot metal presses and containing colour rather than black and white photos, would all be included even if computers and colour photos were not used (and were possibly not even contemplated) in 1975. Similarly, if paper was replaced by a substitute physical material, newspapers published on such material would also likely be included. These examples, however, are very different to digital editions and do not involve the adoption of an impermissibly expansive approach, as would be required to include digital editions." (News Corp UK & Ireland Ltd v. HMRC [2023] UKSC 7)