June 7, 2012
The issue at stake is whether “judicial authority” (the words used in the Extradition act 2003) for the purpose of issuing the arrest warrants can include mere prosecuting authorities, as is the practice in some European countries.
Sweden’s prosecutors are seeking Assange’s arrest to question him on allegations of sexual offences. If UK law requires a court or judge to issue the warrants, then Sweden cannot have him. It is a question of how the words “judicial authority” are interpreted, and Mance cited parliamentary debate on the Extradition Bill in Hansard to suggest that MPs were clear in their minds that they were voting for judges and courts, not for prosecutors.
How Pepper v Hart fits in
But how far can one use parliamentary debates for elucidation of words in statutes. This was also the issue in Pepper v Hart – a case about the taxation of benefits in kind for schoolmasters at Malvern College, viz the cheap education at the school for their children.
The facts of the case are no longer of great interest, but here they are anyway: the masters paid a fifth of the usual fee for their children to be educated at Malvern, a fee that more than covered the actual cost of teaching the small number of children at any one time. The education was a taxable benefit but the issue was how much it was worth and hence how much the tax should be – what was the cash equivalent of the benefit.
Section 63 of the Finance Act 1976 said:
- The cash equivalent of any benefit chargeable to tax
under section 61 above is an amount equal to the cost of
the benefit, less so much (if any) of it as is made good by
the employee to those providing the benefit.
- Subject to the following subsections, the cost of a
benefit is the amount of any expense incurred in or in
connection with its provision, and (here and in those
subsections) includes a proper proportion of any expense
relating partly to the benefit and partly to other matters.
Given there was only a small marginal cost to the school in educating the masters’ children (ie because all the main costs were paid by all the other pupils’ parents) and the concessionary amount the fathers paid more than covered it, the teachers argued that they owed nothing in tax. The Inland Revenue, however, pointed out that the “expense incurred in or in connection with its provision” was the same as for all the other children at the school. The overall amount should be divided between them all, including the masters’, in order to establish the value of the benefit that the masters got – and hence tax it at a higher rate than the marginal cost of the benefit.
Refer to Hansard?
To resolve what the true meaning of the words in the statute (ie to construe the law) the Law Lords had to decide whether they had a right to examine the parliamentary history of the Act. Such history might include, for example, Hansard where words of a minister introducing it or answering questions in Parliament could elucidate the meaning.
As Lord Browne-Wilkinson put it, they had to decide two issues: “The first is whether in construing ambiguous or obscure statutory provisions your Lordships should relax the historic rule that the courts must not look at the Parliamentary history of legislation or Hansard for the purpose of construing such legislation. The second is whether, if reference to such materials would otherwise be appropriate, it would contravene article 9 of the Bill of Rights 1689 (1 W. & M. sess. 2, c. 2) or Parliamentary privilege so to do.”
The first issue is based on a series of judgments that established the “enrolled bill rule” – that judges must only look at the final statute and not concern themselves with any of the procedure within Parliament that got it on to the statute books. Even if the Act was pushed through its parliamentary stages by corruption or suborning MPs, the courts must ignore all that and accept the statute as good law and simply “construe” it – interpret its words to establish its meaning.
Thus in Edinburgh & Dalkeith Railway Co v Wauchope it was argued that proper procedure had not been adhered to in the passing of the act and so the courts should declare it invalid. The argument was rejected. The Act was in the parliamentary rolls (literally rolls of parchment) and so it was good law. Parliament was the only judge of its own procedures.
This doctrine is related to, or may have been derived from Article 9 of the Bill of Rights which says: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
So parliamentarians may speak freely when undertaking their duties in Parliament but also their behaviour, including parliamentary procedures, cannot be challenged in a court of law. This is not the same as immunity from prosecution, as several members prosecuted for false expenses claims found out. But it does suggest a ban on courts accessing parliamentary materials, including the record of debates in Hansard, lest they use such records to “impeach or question” those proceedings.
Browne-Wilkinson referenced Lord Reid as an opponent of consulting Hansard. In Black-Clawson v Papierwerke Waldhof-Aschaffenburg ( A.C. 591) he had said (at pp. 613-615):
“We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said … I have more than once drawn attention to the practical difficulties … but the difficulty goes deeper. Questions which give rise to debate are rarely those which later have to be decided by the courts.”
This suggests the wording of the statute is the wording that Parliament wanted and the wording that judges must therefore construe. There is a practical difficulty too: that wading through masses of parliamentary material would be a huge burden on a court. Finally, in all likelihood the issues raised in the political forum of Parliament are unlikely to be those raised in courts of law.
‘The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there’ Lord Browne-Wilkinson
But even then, “purposive” approaches to interpretation had for a long time been adopted, including reading government White Papers and official reports, “seeking to discover the Parliamentary intention lying behind the words used [in statutes] and construing the legislation so as to give effect to, rather than thwart, the intentions of Parliament,” as one of the schoolmasters’ lawyers (Mr Lester) put it, according to Browne-Wilkinson. Hence: “If a Minister clearly states the effect of a provision and there is no subsequent relevant amendment to the Bill or withdrawal of the statement, it is reasonable to assume that Parliament passed the Bill on the basis that the provision would have the effect stated”. This is very much the Mance position in Assange.
On 31 October 1980, Browne-Wilkinson noted, the House of Commons resolved as follows:
“That this House, while re-affirming the status of proceedings in Parliament confirmed by article 9 of the Bill of Rights, gives leave for reference to be made in future court proceedings to the Official Report of Debates and to the published Reports and evidence of Committees in any case in which, under the practice of the House, it is required that a petition for leave should be presented and that the practice of presenting petitions for leave to refer to Parliamentary papers be discontinued.”
It remained the case, however, that courts could not “question” the proceedings in Parliament. Fortunately the Bill of Rights is a piece of legislation and hence capable of being interpreted by judges. Browne-Wilkinson said: “Article 9 is a provision of the highest constitutional importance and should not be narrowly construed”. Even so, runs Browne-Wilkinson’s argument in effect, the word “question” could not possibly be extended to encompass looking at parliamentary statements, with no intention to criticise and merely to find elucidation.
“Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there.”
Browne-Wilkinson concluded that courts should be able to use parliamentary material to find the “mischief” or problem that the legislation is intended to fix: “Subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where
a. Legislation is ambiguous or obscure, or leads to an absurdity;
b. The material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect;
c. The statements relied upon are clear. Further than this, I would not at present go.”
Relevance to the Assange case
But can Pepper v Hart be used in this way to help Assange avoid deportation? The majority did not think so in Assange v The Swedish Prosecution Authority.
Lord Dyson said at 161:
“I would not go so far as to say that it is impossible to invoke the doctrine of Pepper v Hart  AC 593 in a context such as this. But at first sight, it seems extraordinary to do so if the consequence is that a phrase in an implementing national law bears a different meaning from the same phrase in the international instrument to which it gives effect. The suggestion that the phrase in the implementing law bears a different meaning invites the obvious comment that, if the same meaning had not been intended, surely different language would have been used.”
This fails to deal with the point that the meaning of the international instrument was, according to the President of the Supreme Court, Lord Phillips, (citing the Vienna Convention) established post hoc by practice rather than beforehand by agreement between those passing the Framework Decision on arrest warrants and their translators. However, Dyson continues:
“I accept that there are some passages in the parliamentary exchanges in relation to what was to become the Extradition Act in which ministerial assurances were given that an issuing judicial authority would be a ‘court’. But some of the statements were by no means entirely clear. On 10 December 2001, Mr Ainsworth [Home Office Minister], when pressed by Mrs Dunwoody, said that the only people who would be allowed to issue an arrest warrant would be ‘a judicial authority as recognised normally within either the issuing or the executing state … In [countries other than this country], there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant’ [Dyson’s emphasis added]. As I have already said, in a substantial number of these other countries, public prosecutors had been issuing provisional arrest warrants since 1957.”
One would have to reach for another aid to statutory construction to sort this one out. The question has to be asked: according to the ejusdem generis rule of interpreting “lists” in statutes, does saying “such as magistrates and judges” exclude or include “prosecutors”? An example given by Bob Ainsworth was Bow Street Magistrates’ Court – but he did not mention the police or the Director of Public Prosecution. Surely anyone listening would take the view that he was not including such authorities, since we must assume he was not attempting to mislead the House. We can go further and point out that the rationale, the purpose, of the Framework Decision on European Arrest Warrants was to ensure processes and authorities were recognised across borders but also to remove the political dimension from extradition within Europe. We might accept, at least in the British jurisdiction, that leaving international warrants to judges is the way to achieve that purpose – hence the wording of the UK statute.
Whether the rest of Europe agrees is a moot point, and one Lord Phillips seemed content to leave to a lowest common denominator of authority – if some countries accept prosecutors, all should.
It may well be that the British Houses of Parliament did indeed pass a piece of international legislation that had a different meaning from the way it is interpreted in some (though not necessarily all) of the other signatory nations. But it may be those other countries are wrong and Britain is right. In the UK Parliament a specific assurance was sought regarding the definition of “judicial authority” and it was given – albeit reluctantly, by the minister. That is what MPs voted for.
Pepper v Hart should allow us to say Parliament passed a law that does exactly what it says on the tin – especially given the gloss that Mr Ainsworth also applied to it.
Note: The House of Lords (now Supreme Court) in Pepper v Hart found there was ambiguity in the tax legislation and that the matter was specifically referred to in Parliament. It allowed the schoolmasters’ appeal.
Assange: European human rights defender on abuses of European Arrest Warrants: EU Observer