Parliamentary intention/purpose is a legal construct, not an empirical matter

 

"[166] Another constitutional fundamental which needs to be borne in mind is that the Government is separate from Parliament, notwithstanding the many connections between the two institutions. As a matter of daily reality, ministers and party whips have to negotiate and compromise in order to secure the passage of the legislation which the Government has promoted, often in an amended form. In fact, as well as in theory, “the legislative function belongs to Parliament not to the executive”: Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816, para 111 (“Wilson”) (Lord Hope of Craighead). Accordingly, as Lord Hope observed (ibid), “it is the intention of Parliament that defines the policy and objects of its enactments, not the purpose or intention of the executive”. The reasons which the Government gives for promoting legislation cannot therefore be treated as necessarily explaining why Parliament chose to enact it.

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[167] Two other aspects of Parliamentary proceedings are important in this context. First, the will of Parliament finds expression solely in the legislation which it enacts. Parliament does not give reasons for enacting legislation: it simply votes on a motion to approve a proposed legislative text. There is no corporate statement of reasons, and the individual members of Parliament do not give their reasons for voting in a particular way. As Lord Hobhouse stated in Wilson, para 143, “[i]t is not part of the duty of any Member of Parliament to provide or state definitively in Parliament the justification for legislation which the legislature is [168] Secondly, the decisions which Parliament takes are not necessarily capable of being rationalised in any event. In the first place, Parliament does not operate only, or even primarily, as a debating chamber. It is also a forum for gathering evidence, and for extra-cameral discussion, negotiation and compromise. Furthermore, the way in which members of Parliament vote will usually, but by no means always, reflect party policy, and may be influenced by the discipline imposed by the party whips.

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[172] A further consequence is that the intention of Parliament, or (otherwise put) the object or aim of legislation, is an essentially legal construct, rather than something which can be discovered by an empirical investigation. The point is illustrated by Lord Bingham’s comment in R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] AC 719, para 40, after identifying the rationale of the legislation there in question, “that this rationale was nowhere expressed in the Act, that this did not reflect the Government’s intention in introducing the Bill and that virtually no Parliamentary statement expressed the rationale in this way”." (R (SC) v Secretary of State for Work and Pensions and others [2021] UKSC 26)​

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"[32] First, as Lord Reed explained at [167]:

"… the will of Parliament finds expression solely in the legislation which it enacts. Parliament does not give reasons for enacting legislation: it simply votes on a motion to approve a proposed legislative text. There is no corporate statement of reasons, and the individual members of Parliament do not give their reasons for voting in a particular way."
A consequence of this, as Lord Reed went on to say at [172], "is that the intention of Parliament, or (otherwise put) the object or aim of legislation, is an essentially legal construct, rather than something which can be discovered by an empirical investigation." (Banks v. HMRC [2021] EWCA Civ 1439)

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"[65] That suggestion might have force if ascertaining the intention of Parliament involved a sociological inquiry into what was actually in the minds of individual legislators. However, that would be to mistake the nature of the interpreter's task. When courts identify the intention of Parliament, they do so assuming Parliament to be a rational and informed body pursuing the identifiable purposes of the legislation it enacts in a coherent and principled manner. That assumption shows appropriate respect for Parliament, enables Parliament most effectively to achieve its purposes and promotes the integrity of the law. In essence, the courts interpret the language of a statute or statutory instrument as having the meaning which best explains why a rational and informed legislature would have acted as Parliament has. Attributing to Parliament an error or oversight is therefore an interpretation to be adopted only as a last resort." (R (oao ZYN) v. Walsall Metropolitan BC [2014] EWHC 1918 (Admin))

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External aides have secondary role

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"[28] Having regard to the way in which both parties presented their cases, it is opportune to say something about the process of statutory interpretation.
[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.”

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(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.”

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[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.
[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.”

[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..." (R (oao O) v. Secretary of State for the Home Department [2022] UKSC 3, Lady Arden seems to have favoured a broader approach - §76)

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"[63] While all of this guidance is important, I emphasise in particular that (a) the words which Parliament has chosen to enact are "the primary source by which meaning is ascertained", for "the important constitutional reason" explained by Lord Nicholls in the Spath Holme case that citizens "should be able to rely upon what they read in an Act of Parliament"; (b) "[e]xternal aids to interpretation must therefore play a secondary role"; (c) no external aids can "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"; and (d) "the intention of Parliament" is an objective concept in the sense lucidly explained by Lord Nicholls in Spath Holme [2001] 2 AC 349, 396." (HMRC v. Bluecrest Capital management (UK) LLP [2025]  EWCA Civ 23, Henderson, Lewison, Arnold LJJ)

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"[23] Our task is made much easier by the very recent authoritative restatement by the Supreme Court of the role of external materials in statutory interpretation. In R (on the application of O) v Secretary of State for the Home Department [2022] UKSC 3 Lord Hodge, writing for the majority, said by reference to R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, that the object of statutory interpretation is to identify the meaning borne by the words of an Act of Parliament, in its statutory context; and that citizens should be able to rely on what they read in Acts of Parliament. He went on to say this at [30] [see above]..." (Hyman v. HMRC [2022] EWCA Civ 185)

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"[33] An objective approach is therefore required, in which the meaning of the words used is determined in their statutory context. Explanatory Notes may cast light on that meaning and other external aids may assist in identifying the mischief addressed and the purpose of the legislation, but all such external aids play a secondary role and they will not displace a clear and unambiguous meaning which does not produce absurdity. Rather, the words used are the “primary source” by which meaning is ascertained." (HMRC v. Aozora GMAC Investments Ltd [2022] UKUT 258 (TCC), Falk J and Judge Jennifer Dean)

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Only publicly available materials potentially admissible

 

"[38] This correspondence was never referred to in Parliament. It represented the views of the Welsh Government and the Government in Westminster which were never made public or disclosed to Parliament.

[39] In our view it would be wholly inconsistent with the transparent and open democratic process under which Parliament enacts legislation to take into account matters that have passed in private between two departments of the Executive or between the Executive of the UK and a devolved Executive. We therefore refused in the hearing of the reference to admit the correspondence. We refer to it no further." (Re Agricultural Sector (Wales) Bill [2014] UKSC 43)

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"[13]...But in construing a legislative instrument such as the Commencement Order, just as in construing a legislative instrument in the form of an Act of Parliament, it is a basic constitutional principle that the citizen or person subject to the relevant law should have the means of access to any material which is said to provide an aid to construction of that instrument. It is only material which is in the public domain and of clear potential relevance to the issue of interpretation of a legislative instrument which can be treated as having any bearing on the proper construction of that instrument: see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 614A (Lord Reid), 638D-H (Lord Diplock) and 645C-H (Lord Simon of Glaisdale); Fothergill v Monarch Airlines Ltd [1981] AC 251, 279F-280B (Lord Diplock: "… the need for legal certainty demands that the rules by which a citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible …"); and R (Public and Commercial Services Union) v Minister for the Civil Service [2010] EWHC 1027 (Admin); [2010] ICR 1198, [53]-[55]. The subjective policy intent of the Secretary of State or of those in his or her department is irrelevant to the question of interpretation before the court." (Bogdanic v. SoS Home Department [2014] EWHC 2872 (QB), Sales J)

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- Materials that would be difficult to access and digest

 

In Beswick v. Beswick [1968] AC 58, 74 Lord Reid said:

“For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in Select Committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court.”

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In Fothergill v. Monarch Airlines Ltd. [1981] AC 251, 279, Lord Diplock said:

“The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining ‘the intention of Parliament;’ but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state. Elementary justice or … the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.”

In Davis v. Johnson [1979] AC 264, 350, Lord Scarman said:

“such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, the essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of Parliamentary and ministerial utterances can confuse by its very size.

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It is said that Parliamentary materials are not readily available to, and understandable by, the citizen and his lawyers who should be entitled to rely on the words of Parliament alone to discover his position. It is undoubtedly true that Hansard and particularly records of Committee debates are not widely held by libraries outside London and that the lack of satisfactory indexing of Committee stages makes it difficult to trace the passage of a clause after it is redrafted or renumbered. But such practical difficulties can easily be overstated. It is possible to obtain Parliamentary materials and it is possible to trace the history. The problem is one of expense and effort in doing so, not the availability of the material. In considering the right of the individual to know the law by simply looking at legislation, it is a fallacy to start from the position that all legislation is available in a readily understandable form in any event: the very large number of statutory instruments made every year are not available in an indexed form for well over a year after they have been passed. Yet, the practitioner manages to deal with the problem albeit at considerable expense. Moreover, experience in New Zealand and Australia (where the strict rule has been relaxed for some years) has not shown that the non-availability of materials has raised these practical problems.” (Pepper v. Hart [1993] AC 593, per Lord Browne-Wilkinson)

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- Private correspondence between HMRC and external body excluded

 

"[40] Should that be our conclusion, HMRC sought to contend that the correspondence between HMRC and the BMA Deputising Service had been sufficiently widely distributed to represent publicly available information. We reject that submission. The correspondence was private to the parties to it. HMRC would not have been entitled to share the correspondence with any other taxpayers and whilst the BMA Deputising Service may have chosen, as some of the correspondence indicates, to advise others of its contents that, in our view, falls well short of the material being public information and certainly not material of which it could possibly have been argued that the Appellant would have been aware.

[41] We therefore refuse to admit any of the material contained within the file or the Hansard extracts other than the Explanatory Note and the Explanatory Memorandum." ​(Isle of Wight NHS Trust v. HMRC [2025] UKFTT 114 (TC), Judge Brown KC)

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- Undoubtedly established that background materials can be looked at to ascertain mischief statute intended to address 

 

"[35] We were taken by both counsel to various materials shedding light on the background to the legislation. It is undoubtedly well established that background materials can be looked at for the purpose of ascertaining the "mischief" which a statute is intended to address; quite how far one can go beyond that in using the evolution of draft legislation as an aid to resolving questions of statutory construction is not I think so clear, but we did not hear any argument on the point and in the present case it does not need to be addressed. Although interesting as background I do not think the material we were shown really assists in determining the appeal. Nevertheless for what it is worth I will set out what it consists of.

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[40] What I take from this history is that the legislation was designed to combat what was perceived to be a practice of moving profits in fact derived from the UK offshore oil sector outside the UK tax net, and that after consultation the Government decided to confine the new legislation to what could be described as drilling rigs and accommodation vessels, and took steps to ensure that it was not too widely drafted so as to catch other assets. But that is not much more than is apparent from the legislation itself as it was in fact enacted, and the precise effect of that legislation must turn on the statutory language that was used and approved by Parliament. That as I have already said turns on the ordinary meaning of the words in s. 356LA(3), it not being suggested that they have any special or technical meaning." (HMRC v. Dolphin Drilling Ltd [2024] EWCA Civ 1, Nugee, Jackson, Newey LJJJ)

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"[43] In arriving at our conclusion we have not attached any significant weight to the extrastatutory materials produced by HMRC. We accept, under reference to HMRC v SSE Generation Ltd [2020] STC (UT) 107 at paragraphs 63-65 and the authorities cited there, that these materials are admissible to place legislative provisions into context, notwithstanding that they do not fall within the conditions enunciated in Pepper v Hart [1993] AC 593 for reference to Parliamentary materials as aids to interpretation. We also accept that the terms of the Government observations on the draft Limited Liability Partnership Bill tend to suggest an intention that limited liability partnerships would be treated as partnerships for the purposes of TMA (albeit that the latter is incorrectly referred to as the Taxes Management Act 1988). Ultimately, however, we base our decision on the terms of the legislation enacted, which had not been formulated at the time when these observations were made." (HMRC v. Inverclyde Property Renovation LLP [2020] UKUT 161 (TCC), Lord Tyre and Judge Raghavan)

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“When determining purpose, it is permissible to have regard to the background and context of the provisions at issue. Thus, in UBS, the Supreme Court had regard to the historical perspective leading to the enactment of the statutory provisions in question which informed the purpose for which those provisions had been enacted.” (HMRC v Trigg (a partner of Tonnant LLP) [2016] UKUT 165 (TCC), §15, Asplin J and Judge Berner).

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