Statutory Interpretation The Technique of Statutory ... - Francis Bennion

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110 Part II — Statutory Interpretation Where, without any express indication that an amendment is intended, a consolidation Act reproduces the previous wording in altered form the court must construe it as it stands. It is not permissible, just because the Act is described as a consolidation Act, to treat it as if it reproduced the original wording (Pocock v Steel [1985] 1 WLR 229, 233). In Re a solicitor [1961] Ch 491 the court applied this rule where the Solicitors Act 1843, s 41, providing that application for a costs order could not be made after one year, had been consolidated in the Solicitors Act 1932, s 66(2) to the effect that the order must be made within one year. A change in meaning should not be effected in a provision purporting to be straight consolidation, since this amounts to a fraud on Parliament. For an example see Bennion 1986(4) (omission of 'any' from Companies Act 1985, s 196(2)). Codification Codification consists in the useful reduction of scattered enactments and judgments on a particular topic to coherent expression within a single formulation. It may therefore condense into one Act rules both of common law and statute. The codifying Act may also embrace custom, prerogative, and practice. In Mutual Shipping Corporation of New York v Bay shore Shipping Co of Monrovia [1985] 1 WLR 625, 640 Sir Roger Ormrod remarked that codification of what had previously been no more than usage 'converts a practice into a discretion and subtly changes its complexion'. A codifying Act is prima facie to be construed in the same way as any other Act. If however any real doubt as to its meaning arises, the following rules apply: 1 Unless the contrary intention appears, an Act stated in its long title to be a codifying Act is presumed not to be intended to change the law. 2 In so far as the Act constitutes codification (with or without amendment) of common law rules or judicial sub-rules, reports of the relevant decisions may be referred to but only if this is really necessary. 3 In so far as the Act constitutes consolidation of previous enactments (with or without amendment), the rules stated above in relation to consolidation Acts apply. These are aspects of the plain meaning rule discussed below. They accord with the classic principle laid down by Lord Herschell LC in Bank of England v Vagliano [1891] AC 107, 144 (see p 76 above). For a case where there was real doubt, and the previous law was looked at, see Yorkshire Insurance Co Ltd v Nisbet Shipping Co [1962] 2 QB 330.
Guides to Legislative Intention I: Rules of Construction 111 Enacting history The enacting history of an Act is the surrounding corpus of public knowledge relative to its introduction into Parliament as a Bill, and subsequent progress through, and ultimate passing by, Parliament. In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the act, which may or may not be expressly mentioned therein (Salomon v Commrs of Customs and Excise [1967] 2 QB 116). Judicial notice is to be taken of such facts 'as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed' (Govindan Sellappah Nayar Kodakan Pillai v Punchi Banda Mundanayake [1953] AC 514, 528). The court may permit counsel to cite any item of enacting history in support of his construction of the enactment where the purpose is to show that his construction is not contrary to that item (Cozens v North Devon Hospital Management Committee; Hunter v Turners (Soham) Ltd [1966] 2 QB 318, 321; Beswick v Beswick [1968] AC 58, 105). In considering whether to admit an item of enacting history, the court needs to bear in mind that it is unlikely to be proper to take the item at face value. Material should not be used in the interpretation of the enactment without correct evaluation of its nature and significance. This may in some cases greatly prolong the court proceedings if the item is admitted. Justice Frankfurter accurately summed up the constraining factors: 'Spurious use of legislative history must not swallow the legislation so as to give point to the quip that only when legislative history is doubtful do you go to the statute.' (Frankfurter 1947, p 234.) Although the court has power to inspect whatever enacting history it thinks fit, it will be governed by the submissions of the counsel on either side, at least where they are in agreement. (See M/S Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 WLR 1, 14). A court, after admitting an item of legislative history, often finds that it carries the matter no further. The question of marginal utility arises here, since admitting the item inevitably adds to trial costs. In an Australian case the judge commented: I have necessarily ventured far into the use of legislative history only, in the outcome, to discover that it leads to no conclusion different from that which would have followed from a disregard of anything extrinsic to the words of the legislation itself. (Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583, 599.) Committee reports may be referred to as useful sources of enacting history. (Black-Clawson International Ltd v Papierwerke Waldhof- Aschaffenberg AG [1975] AC 591, 647; see also Fothergill v Monarch Airlines Ltd [1981] AC 251.) In Eastman Photographic Materials Co Ltd v Comptroller-General of Patents [1898] AC 571 the House of Lords considered the meaning
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