Bills Committee on
Interpretation and General Clauses (Amendment) Bill 1999
Information sought by members at the meeting on 21.6.1999
1. In respect of proposed section 19A, to set out in detail the following -
a. The current position regarding the admissibility of each of the materials listed in subsections (2)(a) to (2)(i) as an aid to statutory interpretation and the authority under which they are admissible.
1. For reference, a copy of the passages relating to enacting history in Halsbury's Laws of England 4th Ed., Vol. 44(1) (Reissue) and 1999 Supplement (Halsbury's) is attached at the Appendix.
Subsection (2)(a): matters not in Ordinance
2. The reference to "matters not forming part of the Ordinance" includes guides to content, such as headings and marginal notes, which are separate from the pronouncements of law in the Ordinance. Some earlier dicta indicated that marginal notes must be disregarded (e.g. Re Woking UDC  1 Ch 300, 332 and R v Hare  1 KB 354, 355). In R v Schildkamp  AC 1, 10, however, Lord Reid said that he "would not object to taking all these matters into account, provided that we realise that they cannot have equal weight with the words of the Act".
Subsection (2)(b): official reports (Hong Kong)
3. The change clarifies and implements the approach in Pepper v Hart  3 WLR 1032 which rejected the distinction between the terms "mischief" and "intention" that had been applied to commission reports and other pre-parliamentary material. At p.1040, Lord Browne-Wilkinson said that, "the distinction between looking at reports to identify the mischief aimed at but not to find the intention of Parliament in enacting the legislation is highly artificial".
4. Extensive authority on the use of such reports is cited in Halsbury's in the Appendix, para. 1423, and in the Law Reform Commission Report on Extrinsic Materials as an Aid to Statutory Interpretation (LRC Report), pp.66-69.
5. For recent Australian authority, see Newcastle City Council v Gio General Ltd (1998) 72 AJLR 97, 112, in which the High Court of Australia said -
"The context [to which a court is permitted to have regard] includes reference to the provision's legislative history and the relevant reports of law reform bodies which detail the perceived evil requiring reform."
Subsection (2)(c): official reports (other jurisdictions)
6. This is a Hong Kong innovation which is not found in section 15AB of Australia's Acts Interpretation Act 1901, upon which the proposed section 19A is based. As noted in paras 11.69-70 of the LRC Report, it is included because of doubts about whether it is appropriate to refer to official reports from other jurisdictions unless they deal with legislation in such jurisdictions on which Hong Kong legislation was modelled. Therefore subsection (2)(c) makes the matter very clear. The authority relevant to subsection (2)(b) applies to how such reports may be taken into account.
Subsection (2)(d): treaties
7. Authority on the admissibility of treaties and related material is listed in Halsbury's, para. 1426, and in the LRC Report, paras 2.53-2.74. Subsection (2)(d) removes any doubt about whether the principle in Ellerman Lines Ltd v Murray  AC 126 (the court is entitled to consult a relevant treaty only where the enactment is ambiguous) or that in Salomon v Customs and Excise Comrs  2 QB 116 (if an enactment implements international obligations the court can look at the treaty) prevails in Hong Kong by effectively overruling the former (the LRC Report, para. 2.64, refers to opinion regarding the desirability of clarification of this matter by the House of Lords or by statute).
Subsection(2)(e): explanatory memorandum
8. Halsbury's, para. 1425, states that, "Being designed to throw light on the meaning of the Bill, such memoranda are of obvious relevance to the construction of the ensuing Act, and are admissible accordingly". Further, at n.1, it is noted that the explanation of the contents and objects of the Bill "must be framed in non-technical language, and must not be argumentative".
Subsection (2)(f): second reading speech
9. The leading authority for the relaxation of the rule excluding parliamentary material, with special emphasis on the second reading speech, is Pepper v Hart, at p.1056. Halsbury's, para. 1421, lists updated authority. Examples of post-Pepper v Hart Hong Kong cases regarding second reading speeches include Hong Kong Racing Pigeon Association Limited v Attorney General  2HKC 201(CA) (LRC Report, para 6.19) and Matheson PFC Limited v Jansen (1994) CA No. 72 of 1994, unreported (LRC Report, para 6.79).
Subsection (2)(g): Legislative Council committee reports
10. Pepper v Hart, p.1056, albeit in very cautious terms, permits reference to parliamentary material other than the second reading speech subject also to the condition that it "clearly discloses" the mischief or legislative intention underlying the statutory words. In Sunderland Polytechnic v Evans  ICR 392, the Employment Appeal Tribunal referred to a statement made by an Under Secretary to a Standing Committee which explained the section in question. This and other authority on the use of such material is cited in the LRC Report, paras 9.58-9.63.
Subsection 2(h): document declared relevant by Ordinance
11. This is statutory and adopts the Australian section 15AB(2)(f). The LRC considered this to be a useful provision and recommended that it may be advisable for the draftsman to use subsection 2(h) to provide in an Ordinance implementing a treaty that the treaty and its travaux preparatoires are relevant documents as extrinsic aids (LRC Report, paras 11.75 and 11.88). This has been done with the Arbitration Ordinance (Cap. 341).
Subsection 2(i): relevant material in official record of debates
12. Authority regarding this subsection is noted in the LRC Report, paras 11.76-11.81. The LRC considered that it would be too restrictive to allow reference only to the second reading speech. A policy secretary, for example, might make statements at the committee stage which met the Pepper v Hart criteria. In Pepper v Hart, questions put to the minister in Parliament were allowed in. Lord Browne-Wilkinson, p.1058G, observed, "What is persuasive in this case is a consistent series of answers given by a minister, after opportunities for taking advice from his officials, all of which point the same way and which were not withdrawn or varied prior to the enactment of the Bill".
b. Whether each of the provisions in subsections (2)(a) to (2)(i) is a legislative reform or a codification of existing rules.
13. As noted in para 11.49 of the LRC Report, the provisions represent both codification of common law principles and legislative reform. For ease of reference, para 11.49 is set out in full -
"11.49 The Commission identified a number of reasons supporting legislative reform:
Despite Pepper v Hart, there remained unresolved areas, such as uncertainty as to the "other parliamentary materials" which may be used.
Incremental clarifications of the law [by the courts] would be piecemeal, slow, and incomplete, whereas legislation would provide a code which would be clear and comprehensive.
Pepper v Hart, by placing emphasis on the second reading speech of the Bill's promoter, is limited in scope, yet the trend in common law jurisdictions is towards further relaxation of the exclusionary rules. By expanding the scope, legislation would give the courts the discretion to consult a wider ranger of materials relating to the legislative history of an ordinance, including explanatory memoranda.
Legislation would publicise the relaxation of the exclusionary rules and its benefits.
Legislation can set out extrinsic materials that are prima facie reliable and omit generally unreliable extrinsic materials.
Legislation could clarify the use of extrinsic materials in the interpretation of treaties and deal with other matters left unresolved, such as the problems of per incuriam and its application to prior legislation.
Legislation could reinforce the use of a purposive approach as mandated by section 19 of the Interpretation and General Clauses Ordinance (Cap. 1), since the purpose can often be discovered only by consulting extrinsic materials.
A bilingual statute clearly explaining the use of extrinsic materials would be preferable to reliance on a number of judgments, many of which would come from overseas."
14. It should be noted that subsection (2) does not purport to be a complete code. It sets out a non-exhaustive list of the more important extrinsic material that may be used as an aid to interpretation. For example, extrinsic material such as other statutes, textbooks, other court decisions and dictionaries are not listed. Such material, however, is covered by the generality of subsection (1), and by subsection (7) which saves the applicable common law.
15. On the assumption that all of subsection (2) is a code, an analysis of how each paragraph represents law reform is set out below -
2. Any evidence on additional legal costs that have been saved or incurred by using extrinsic material in statutory interpretation and an estimate of the savings in costs.
- Subsection (2)(a) makes it clear that the principles in R v Schildkamp apply to the use of material printed with the Ordinance such as headings and marginal notes (see para. 2 above).
- Subsection (2)(b) makes it clear that official reports may be used as an aid to find the legislative intention, not merely the mischief aimed at (see paras 3-5 above).
- Subsection (2)(c) is a Hong Kong innovation which clarifies the entitlement of the court to refer to official reports from other jurisdictions (see para. 6 above).
- Subsection (2)(d) makes it clear that the principle in Salomon v Customs and Excise Comrs applies to the interpretation of enactments implementing treaties and that Ellerman Lines Ltd v Murray is overruled (see para. 7 above).
- Subsection (2)(e) clarifies the entitlement of the court to refer to the explanatory memorandum (see para. 8 above). This was not dealt with in Pepper v Hart.
- Subsection (2)(f) reflects the decision in Pepper v Hart regarding references to the second reading speech and as such represents codification rather than law reform or clarification (see para. 9 above).
- Subsection (2)(g) clarifies the entitlement of the court to refer to Legislative Council committee reports despite the emphasis in Pepper v Hart on the second reading speech (see para. 10 above).
- Subsection (2)(h) is a utility provision which acts as a guide to the draftsman, where appropriate, to declare a document such as an official report or a treaty implemented by an Ordinance to be relevant to the interpretation of that Ordinance (see para. 11 above).
- Subsection (2)(i), similarly to subsection (2)(g), clarifies the entitlement of the court to refer to relevant material in the official record of debates besides the second reading speech (see para. 12 above).
16. As an introductory comment, it should be noted that the authority to use extrinsic material has already been established by Pepper v Hart. Therefore if any additional costs were incurred by such use, that would be a result of Pepper v Hart, not of the Bill.
17. Further, it is expected that the Bill would save additional legal costs by providing clarification of areas of doubt which remain in the common law despite Pepper v Hart (as noted above in respect of subsection (2)(a) - (i)) and by providing a coherent guide in one publicly-accessible, bilingual document as to what may constitute relevant extrinsic material. The value of a code in saving legal costs is that it greatly reduces the need to expend time and resources to ascertain the law by researching and copying cases. Reference may be had to the codifying statute "instead of, as before, by roaming over a vast number of authorities" (Bank of England v Vagliano  AC 107, 144).
18. There appear to be no texts or comparative statistics which deal specifically with the costs or savings of using extrinsic material. A precise estimate of any savings in costs would therefore be difficult. However, there are many observations in the authorities that the use of extrinsic material may either save legal costs or result in no additional costs or, if so, that this is balanced by the interests of doing justice. For example -
- Brazil "Reform of Statutory Interpretation" (1988) 62 ALJ 503, 512, noted that, following the enactment of Australia's section 15AB (the model for the proposed section 19A) the worst apprehensions that the use of extrinsic material might cause longer proceedings and preparation of cases, leading to significantly greater costs, seem not to have been realised (LRC Report, para. 8.37).
- In Pepper v Hart, p.1040, Lord Bridge recognised that where Hansard provides the answer it should be clear that the costs of litigation will be avoided (LRC Report, para 5.22, n.32).
- In Chief Adjudication Officer v Foster  2 WLR 292, 306, Lord Bridge observed that as time passes the effect of the new rule should be to prevent or curtail litigation relating to ambiguous legislation which would otherwise be fought through the courts (LRC Report, para 11.42).
- Sellar in "The relevance of Pepper v Hart to company practitioners" (1993) SLT 357, 359, suggested that for company law practitioners the use of the criteria would save legal costs by assisting advisory work and so obviating the need for litigation in some cases (LRC Report, para 11.42).
- An example of saving costs by the use of extrinsic materials is Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 20 ALR 621 in which the High Court of Australia looked at a draft Bill contained in an official report and found that the Act departed from the draft Bill, thereby making reference to the report unnecessary (LRC Report, para. 8.8).
- "Allowing reference to extrinsic aids may increase the complexity of the interpretation process. However, litigants are entitled to be dealt with justly through the court process. … Recourse to extrinsic materials has sometimes short-circuited the process of construction, enabling courts to come to a quick and just solution. Had recourse been denied, "groping in the darkness" and lengthy proceedings might well have ensued, together with a wrong result. This view was endorsed by Lord Wilberforce at the [Symposium on Statutory Interpretation held in Canberra in 1983] when he said: "… to know [what had occurred during Parliamentary debate on an Act before the court] would be enormously helpful to a judge, save hours of argument and cogitation, and prevent a number of wrong or appealable decisions" (Scutt "Statutory Interpretation and Recourse to Extrinsic Aids" (1984) 58 ALJ 483, 492).
- The Victorian Legal and Constitutional Committee believed that "any increase in costs must be balanced against the possibility of decrease in time, delay and costs in certain cases through recourse to extrinsic sources" (LRC Report, para 8.35).
- In Melluish v B.M.I. (No. 3) Ltd  3WLR 631, 645, Lord Browne-Wilkinson warned that appropriate orders as to costs wasted would be made "if attempts are made to widen the category of materials that can be looked at" (LRC Report, para 11.79).
- In "Statutory Interpretation: An Australian Judicial Perspective" (1992) 13 Stat LR 187, 205, Mr Justice Bryson observed that the courts have put clear and appropriate limits on the use to be made of ministerial speeches and therefore resort to them in counsels' argument has become less frequent than it was in the first years after the enactment of section 15AB (LRC Report, para 8.45).
19. It is also relevant regarding savings in costs that the Bill does not incorporate the Australian section 15AB(1)(a) which provides that extrinsic material may be used to confirm the ordinary meaning of a statutory provision. The LRC recommended against incorporating such a provision in the Bill in order to control the use of extrinsic material and to prevent an escalation of legal costs (LRC Report, paras 11.59-11.60).
Department of Justice