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Article in Public Law
Introductory Note by Francis Bennion
When I wrote the following article I was not aware
of an important article by Professor Stefan Vogenauer that I would have wished to take
into account. This is ‘A Retreat
from Pepper v Hart? A Reply to Lord Stein’ 25 Oxford Journal of Legal Studies (1
Dec 2005) 629.
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[2007] Public Law, Spring 1
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Doc. No. 2007.003 |
Page 1
Executive estoppel: Pepper v Hart revisited
The dust has died down on the great case of Pepper
(Inspector of Taxes) v. Hart in
which the House of Lords relaxed the long-standing rule against reference to Hansard
in cases
concerning statutory interpretation. A fresh look at the Appellate Committee opinions
after more than a decade confirms the misgivings many lawyers had at the time.
This
article, while not examining the general question of resort to Hansard for interpretative
purposes, seeks to show that the majority opinions were seriously flawed with regard
to the substance of the case. They
failed to perceive that the enactment in question left the crucial decision to the judgment
of the then
Board of Inland Revenue , acting
quasi-judicially, and that far from rendering the enactment ambiguous (as the Appellate
Committee found), this is a normal and proper feature of legislation.
The majority also
failed to perceive, on consulting Hansard, that the Minister had acted improperly in
telling the House of Commons in advance how the Board would exercise its
judgment and basing this information on an incorrect reading of the relevant enactment.
It
now seems that the Appellate Committee’s correct course would have been to find
that the Government were estopped by the Minister’s misstatements from asking the
courts to enforce a version of the enactment that was contrary to the assurances he had
given to the House of Commons. It is suggested that the whole amounted to a failure of
law-text analysis (a neglected topic) by the courts concerned.
Page 2
Wording of key enactment
Parliamentary Counsel nowadays draft
with precision, expecting the courts to pay careful attention to the exact wording of
their enactments. It seems that the Appellate Committee
paid insufficient attention to the wording of the key enactments in Pepper v Hart, or
as it was put by Alan Moses QC (now Lord Justice Moses), counsel for the Inland Revenue
in Pepper v Hart: “The words in the clause were not construed at all”.
The
key enactments were sections 61(1) and 63(1) and (2) of the Finance Act 1976. A selective
comminution of these produces the following, where numbering and emphasis have been
added:
(1) Where in any year a person is employed in higher-paid
employment
and
(2) by reason of his employment there is provided
for him, or for others being members of his family, any benefit to which the Finance
Act 1976 s 61 applies
and
(3) the cost of providing the benefit is not (apart
from that section) chargeable to tax as his income
(4) there is to be treated as emoluments
of the employment, and accordingly chargeable to income tax under Schedule E, an amount
equal to whatever is the cash equivalent of
the benefit.
(5) The cash equivalent of the benefit 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.
(6) The cost of a benefit is the amount of any expense
incurred in or in connection with its provision, and includes a proper proportion
of any expenses relating
partly to the
benefit and partly to other matters.
It is submitted that this is a perfectly clear enactment,
with no ambiguity whatsoever. In order to be applied it requires, as is commonly the
case with statutory interpretation,
first the ascertainment of certain facts and secondly the exercise of judgment in relation
to those facts.
The true analysis
Pepper v Hart concerned masters at Malvern College,
an independent fee-paying school. Simplifying the facts without altering the substance,
it can be said that a taxpayer
Mr Hart, one of the masters, satisfied clauses (1)-(3) above so
Page 3
that under clause (4) he was chargeable in
respect of the cost of the benefit he received, which was a reduced-rate place at the
College for his son Bruce.
The carefully-drafted provisions spell out precisely
what is meant by “the cost
of the benefit”. The benefit to Mr Hart was made up of two kinds of component,
respectively referred to at the hearing as “in-house” and “external” components.
An in-house component was one shared generally by the schoolboys, such as staff salaries
and payments for food, heating, and maintenance. An external component was one confined
to a particular pupil, such as the supply to him individually of a replacement school
blazer.
The dispute was restricted to in-house components,
so it was necessary to determine first “the
amount of any expense incurred in or in connection with [their] provision” during
the relevant period, and second what was “a proper proportion” of that amount
to allocate to Mr Hart. There is no doubt about the broad meaning of the phrase “the
amount of any expense incurred in or in connection with [their] provision”. Clearly
it includes out of pocket expenses incurred during the period, such as payment of staff
salaries or the cost of food bought for the school kitchen. There might be some doubt
about whether to include items such as amortization costs for school assets, but matters
of that kind would obviously be dealt with according to the practice of the Board of
Inland Revenue (as it then was) and would cause no difficulty. Certainly there cannot
be said to be any material ambiguity in that respect. It was a matter left to the judgment
of the Board, subject to rights of appeal. In Pepper v Hart there was no dispute over
this aspect.
What of that phrase “a proper proportion”,
over which the dispute lay? Here there was no ambiguity either. The statute contemplated
that the Board would
instruct
the tax officials who would actually carry out the calculation on what basis to determine
this. It would be a quasi-judicial function, requiring the exercise of judgment coupled
with fairness. The statute no
doubt contemplated that normally the expenses would be treated as equally divided between
all the pupils of the school, but as we shall see
there might be good reasons for departing from this in particular instances.
The courts
dealing with the case did not view it in that way. Until the point at which parliamentary
debates were brought into consideration, the courts construed what we are
calling clause (6) as laying down a crude average cost basis applicable in all cases.
This began in the High Court, where on appeal from the Special Commissioner, Vinelott
J. described the basis provided by clause (6) as “the expense incurred in or in
connection with the facilities afforded and so far as shared with the other boys at the
school a rateable proportion of the facilities afforded to them all”. Clearly
he was referring to what came to be called the average basis, under which the share of
expenses allotted to each boy in the school was an equal aliquot portion. Vinelott J
did not discuss the point, but assumed without argument that the wording was open to
no
Page 4
other construction. His dictum was expressly
concurred in by Slade L.J. on appeal, again without any examination or discussion of
the reasoning. The same reasoning was adopted
by the Appellate Committee in the first of its two hearings. At that stage they rejected
an argument put forward by Mr Anthony Lester Q.C. (now Lord Lester of Herne Hill) for
the taxpayers. This urged that “the cost of the benefit” was limited to the
additional costs over and above those incurred in providing, maintaining and running
the undertaking as a going concern, that is it was “the sum of the direct additional
costs incurred by Malvern College in providing for the education and maintenance of the
taxpayers’ sons”. Mr Lester argued that it was only these that were the expenses
which would not have been incurred but for such provision to them. He added:
“
This construction accords with the understanding of the man in the street when asked
how much the provision of an in-house benefit would cost an employer operating with surplus
capacity . . . [It] accords with what the special commissioner described as ‘the
commercial realities of the situation’: [1990] S.T.C. 6, 11F.”
This advocated
the so-called marginal basis, the one that was finally adopted by the Appellate Committee,
though the fact is that neither the opinion of the man in the street
nor the commercial realities had anything whatever to do with the matter. It was a question
of construing statutory words that were entirely plain and straightforward if properly
understood. The marginal basis, as counsel for the Revenue pointed out, ignores the
words “in connection with” in clause (6). Proper interpretation does not
ignore carefully crafted words.
The true analysis, it is submitted, was this. The
formula in clause (6) was created to provide for the exercise of judgment by the Board
of Inland
Revenue. The Board might
exercise this judgment in various ways, for the formula was not ironclad. It left scope
for variety in its application if this should seem expedient. The only limitation was
the usual one that fairness must always be shown, and that the Board must not stray beyond
the confines of the formula in a way that would justify interference by a reviewing or
appellate court. But it was the judgment of the Board through its officials, and not
of any other person or body, which was to be deployed. This even meant that over time
the Board could if it thought fit change the way it exercised this judgment, provided
the parameters just mentioned were observed.
Failure to follow the true analysis
Lord Browne-Wilkinson,
who delivered the leading speech in the Appellate Committee, was troubled by the following,
which it seems helped him to
Page 5
reach the conclusion that there was a real
doubt about whether the average basis was correct:
“
The strongest argument in favour of the taxpayers is the anomaly which would arise if
the employer’s business were running at a loss or was subsidised by endowment.
As I have explained, in such a case the adoption of the literal meaning of the statutory
words would lead to a result whereby the taxpayer is assessed at an amount greater than
that charged by the employer to the public for the same service. The Crown have no answer
to this anomaly as such.”
This shows that Lord Browne-Wilkinson was assuming,
incorrectly it is submitted, that the literal meaning was that the average basis should
be adopted in an ironclad one-method-fits-all
manner instead of in the flexible way just outlined. He said that the Crown had no answer
to this so-called anomaly. The Crown might have given the answer I have just suggested,
but apparently did not think of it. In the Court of Appeal Slade LJ had also referred
to the so-called anomaly. He lamented that it seemed harsh that on the average basis
if a school was running at a loss the notional emoluments would include a sum greater
than the normal school fees. However he found the wording too clear to allow this to
be avoided. Again it is submitted that this was misconceived.
Clause (6) does not say anything about payment of
a rateable or average proportion of the total expenses. It says that the taxpayer in
an individual case must pay what is
in that case a proper proportion of any expenses (the school overheads) relating partly
to the benefit enjoyed by the taxpayer and partly to other matters. Until the parliamentary
proceedings were brought in, it was assumed by everyone concerned that “a proper
proportion” must always be a rateable or average proportion. That is not what the
phrase means. It means a proportion which on the facts of the individual taxpayer’s
case would be “proper”.
Normally no doubt this would be the average basis.
But if the school had been running at a loss, that could have been taken into account
and the proportion reduced accordingly.
If it had been subsidised by endowment, a similar reduction could and should have been
made. A reduction could have been made to reflect the fact (if such was the case) that
staff receiving a benefit may not be in as good a position vis-a-vis the employer as
an independent member of the public (they may be expected to help out, or accept a lower
standard of service). In Pepper v Hart Lord Mackay considered that the taxpayers’ sons
were in a position inferior to that of ordinary pupils. A
Minister cited by Lord Browne-Wilkinson said in relation to airline staff:
“ It was never intended that the benefit received
by the airline employee would be the fare paid by the ordinary passenger. The benefit
to him would never be as high as that,
because of certain disadvantages that the
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employee has. Similar considerations, although
of a different kind, apply to railway employees.”
Use of the phrase ‘a proper proportion’ indicated
that, contrary to the view taken by all the judges in Pepper v. Hart, the drafter
did not intend one uniform test to be applied invariably. If he had intended that, he
would have specified the test in
the legislation according to normal drafting practice. Clearly the drafter’s
intention was that the object of the legislation should be realised by taxing each employee
on a fair and reasonable quantification of the benefit they actually received, omitting
any element of profit to the employer.
Introducing the parliamentary proceedings
At its first
hearing the Appellate Committee followed the well-established exclusionary rule and did
not refer to Hansard. At the conclusion of that hearing it is clear that
they would have upheld the courts below and found for the Revenue on the basis that the
inflexible average basis applied.
However after the conclusion of the first hearing
it came to their Lordships’ attention that an examination of the proceedings in
Parliament in 1976 which led to the enactment of sections 61 and 63 might give a clear
indication
of which of the two rival contentions represented the intentions of Parliament in using
the statutory words. The case was therefore relisted for rehearing before a committee
of seven Law Lords not all of whom sat on the original committee.
In his opinion at
the second hearing Lord Browne-Wilkinson proceeded to examine the parliamentary proceedings,
taking up more than five pages of the report in doing so. It suffices
to quote one brief extract. The Bill was being debated in House of Commons Standing Committee
E.
A member of the committee asked about the position
of school teachers enjoying concessionary fees. The Financial Secretary to the Treasury
responded as follows:
“
He mentioned the position of teachers. The removal of clause 54(4) will affect the position
of a child of one of the teachers at the child’s school, because now the benefit
will be assessed on the cost to the employer, which would be very small indeed in this
case’.”
Later Lord Browne-Wilkinson explained that in various
contributions to the debates the Financial Secretary had made it clear that in each case
(including
that of teachers)
the charge would be on the cost to the employer of providing the services and that in
each case that cost would either be nil or very small. Lord Browne-Wilkinson relied
on this in concluding that the Financial Secretary had meant that the marginal basis
for which Mr Lester argued, and not the
Page 7
average basis, was the one that the Revenue
would apply. In crucial words Lord Browne
Wilkinson went on:
“
The question then arises whether it is right to attribute to Parliament as a whole the
same intention as that repeatedly voiced by the Financial Secretary. In my judgment it
is. It is clear from reading Hansard that the [Standing] Committee was repeatedly asking
for guidance as to the effect of the legislation . . . That Parliament relied on the
Ministerial statements is shown by the fact that the matter was never raised again .
. .”
An unsuitable vehicle
Pepper v Hart was an unsuitable
vehicle for a major change in the law governing resort to Hansard in relation to statutory
interpretation. It was not the ordinary case where
the court simply has to decide on the disputed legal meaning of an enactment. It was
an income tax case that had unusual background features of a sort which became familiar
to me in my days as a Finance Bill draftsman. The main background feature was the presence
of HM Board of Inland Revenue, as it then was. The Board managed the income tax legislation
under its control in a special way. For example it did not always exact the maximum amount
of tax that the legislation imposed according to its legal meaning. It exercised a discretion
in the matter. It entered into agreements with bodies representing taxpayers about how
its statutory powers would be employed. One such agreement in relation to the “perks” of
railway workers is referred to by Lord Browne-Wilkinson Elsewhere
it was referred to by Alan Moses QC as “a deal which had been struck with those
representing railway employees in the late 1940s, when they were a political force to
be reckoned with”.
The Board also operated a complex and extensive system
of extra-statutory concessions, which is still in operation. The Board sometimes displayed
a cavalier attitude to the
exact wording of current or prospective income tax legislation because that would not
necessarily govern the Board’s actual practice. Alan Moses QC said that “Prior
to the introduction of the Finance Bill in 1976, the Inland Revenue had never conceded
that marginal cost was the appropriate measure but had acquiesced in a practice of compromise
or fudge and muddle”. Later
he referred to “the pre-existing unhappy practice
of muddle and illogicality with no one knowing how the practice was to be applied to
a series of employees [school teachers] who had not previously been affected by the charge”.
A Treasury Minister who was in charge of a Bill promoted
by the Board tended to share this cavalier attitude to the precise wording of the Bill
because that was the climate
in which he was operating. In debates the Minister would
Page 8
give answers directed to how the Board would
use the powers conferred by the Bill rather than what the wording of the Bill actually
was. The answers, like most answers given
by politicians about the legal meaning of legislation, tended to be rough and ready.
In Pepper v Hart the Financial Secretary repeatedly said that on concessions by employers “the
effect of the Bill would be to leave their position unchanged from the previous law” 29 notwithstanding that the wording of the previous law was quite different.
All this led
to some remarkable circumstances. The Minister gave assurances during the passage of
the Bill that were considerably more favourable to the taxpayer than was indicated
by the clear legal meaning of the enactment in question. At first the Board operated
the resulting legislation in accordance with those assurances, but later tried to go
back on them and implement the legal meaning, as strictly speaking it had power to do.
That was what gave rise to the Pepper v Hart litigation.
Whether or not the Appellate
Committee was right in finding that the legislation in question was ambiguous (it is
submitted they were not right) the fact has to be faced that the
Minister misled the MPs who were deciding whether or not to approve the legislation.
He did not tell them the true legal meaning of the proposed enactments. This was not
a course of deliberate deceit, but was no doubt due to inadvertence. The Minister in
question, now Lord Sheldon, was trained as an engineer not a lawyer. He was not equipped
to understand the finer details of financial legislation. Was this a proper basis for
the Appellate Committee to determine the legal meaning of the legislation?
Executive estoppel
It could be contended that what the Appellate Committee
decided at its second hearing transcended mere statutory interpretation and struck a
blow for justice.
The government
had persuaded MPs to pass this tax legislation by telling them it would be administered
by the Revenue on the marginal basis, one more favourable to taxpayers than the average
basis or even the basis of what is “proper” where there are “special
factors”. This naturally troubled theirn Lordships.
Lord Bridge of Harwich said it raised an
acute question as to whether it could possibly be right to give effect to taxing legislation
in such a way as to impose a tax which
the Financial Secretary to the Treasury, during the passage of the Bill containing the
relevant provision, had, in effect, assured the House of Commons it was not intended
to impose. Lord Griffiths said the case provided a dramatic vindication of the decision
to consult Hansard: “had your Lordships not agreed to do so the result would have
been to place a very heavy burden of taxation upon a large number of persons which Parliament
never intended to impose.”
Page 9
Lord Browne-Wilkinson cited Lord Wilberforce’s
extra-judicial plea in 1983 that the rule against citing Hansard should be relaxed where
the government went back on a
parliamentary statement that a Finance Bill was not intended to tax a particular class
of beneficiary. This pointed
the way to at least a partial solution of the problem, which was picked up by Lord Steyn
in NASS. In Pepper
v Hart the
Government had told Parliament how a body for which the Government was responsible (the
Board of Inland Revenue)
would exercise a power of judgment about to be conferred on it by legislation. In NASS the
Government had likewise told Parliament (this time by way of explanatory notes accompanying
the bill for the Immigration and Asylum Act 1999) how powers conferred by that Act were
to be exercised. Lord Steyn said that while he would not rely on these notes he would
clarify their status. He stressed that such explanatory notes may be used as establishing
the context of an enactment whether or not it is ambiguous. His key dictum is:
“ If exceptionally there is found in Explanatory
Notes a clear assurance by the executive to Parliament about the meaning of a clause,
or the circumstances in which a power will
or will not be used, that assurance may in principle be admitted against the executive
in proceedings in which the executive places a contrary contention before a court.
Lord
Steyn said that this reflected the actual decision in Pepper v Hart, adding
“
What is impermissible is to treat the wishes and desires of the Government about the
scope of the statutory language as reflecting the will of Parliament. The aims of the
Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot
be attributed to Parliament. The object is to see what is the intention expressed by
the words enacted.”
In 2001 Lord Hope of Craighead had said-
“
For the reasons which I explained in R v Secretary of State for the Environment,
Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 WLR 15, 48C-E, I consider that the effect
of the exception to the rule that resort to Hansard is inadmissible for the purpose of
construing an Act which was recognised in Pepper v Hart [1993] AC 593 is that, strictly
speaking, this exercise is available for the purpose only of preventing the executive
from placing a different meaning on words used in legislation from that which they attributed
to those words when promoting the legislation in Parliament. In expressing that view
I wish to acknowledge the debt which I owe to my noble and learned friend Lord Steyn’s
Page
10
valuable discussion of this point in ‘Pepper
v Hart: A re-examination’ (2001)
21 Oxford Journal of Legal Studies 59”.
Commenting on this passage Ian McLeod
says:
‘
This way of looking at the matter, which has led Bennion to coin the term executive
estoppel (see Pepper v Hart and Executive Estoppel (2006)
170 JPN 167), provides a useful insight. However, if this approach is followed through,
it would be at least arguable that one
consequence would be to make Pepper v Hart relevant to the interpretation of
any given statute only while the government which was responsible for the enactment of
that statute
is still in office.’
The better view may be that a government binds its successors in this respect. That is
one of many aspects that need settling in relation to executive estoppel.
In a later case
Lord Hope of Craighead said-
“ As I understand [Pepper v Hart],
it recognised a limited exception to the general rule that resort to Hansard was inadmissible.
Its
purpose is to prevent the Executive seeking
to place a meaning on words used in legislation which is different from that which Ministers
attributed to those words when promoting the legislation in Parliament (see R v Secretary
of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001]
1 All ER 195 at 226-227, [2001] 2 AC 349 at 407-408). Mr Sumption recognised that the
exception thus stated has commanded broad acceptance where it has operated as a kind
of quasi-estoppel against the Executive.
Roderick Munday has observed that this does
not amount to a fully worked-out theory, but adds that it is one whereby the executive “effectively
estops itself from employing a provision in the Act in a specified manner in the future” and
says where it does so “the executive will not be entitled to renege on that undertaking”.
What we have here is the emergence of a doctrine,
which might conveniently be referred to as executive estoppel, whereby the executive
is in law prevented from going back on
an assurance as to its future conduct in relation to the relevant legislation, given
by it as part of the enacting process. This is a matter not of the interpretation of
the resulting Act but of its future administration.
Where the executive has committed
itself in this way the courts will not assist it to enforce the Act in an alternative
manner which runs counter to what has been notified
to the public. This applies even though the alternative manner conforms to the legal
meaning of the enactment. Furthermore it seems to apply even where, as in Pepper
v Hart,
the notified manner is not in accordance with the legal meaning. This somewhat startling
result means that the court
Page 11
will enforce an incorrect legal meaning just because
that is what the executive promised that it would apply.
This doctrine of executive estoppel obviously allows
reference to Hansard to be made by the court in order to establish that the commitment
in question
was given by a representative
of the executive. The courts need to distinguish carefully between the giving of such
an assurance and the existence of ambiguity or obscurity in the wording of the enactment.
The wise words of Lord Steyn in the citation above need always to be remembered: “The
object is to see what is the intention expressed by the words enacted”. If the
intention is to confer a power of judgment or discretion on the executive, and the executive
gave an assurance about the way in which it intended to exercise that power, it will
not be allowed to renege on that assurance in legal proceedings.
So far as I am aware,
until recently no one has thought of estoppel in this connection. No one that is except
James Goudie QC. Speaking at an Oxford seminar held soon after
Pepper v Hart was decided, he presciently said in response to a comment of mine:
“
How about a form of estoppel? There’s a European precedent – a member state
can’t take advantage of wrongly failing to implement a directive. It sticks in
the throat if a Minister gives an assurance when he promotes legislation and then later
tries to run a case contrary to that assurance. You wouldn’t have the Pepper
v Hart sledgehammer. It would only apply where a Government department was a party
to the litigation and you would only refer to Hansard in such cases. Whereas if I were
litigating
against Richard [Richard Gordon QC] on a point of statutory interpretation neither of
us could refer to a Ministerial statement. We would be on level playing field. Estoppel
wouldn’t go to meaning, but to the pursuit of a claim contrary to an assurance.”
Legitimate
expectation
Although I have ventured to label the doctrine under
discussion by the convenient name of executive estoppel, I should note that use of the
term estoppel
in this public law
connection may now be thought old-fashioned in view of remarks by Lord Hoffmann in Reprotech. He
drew attention to
a 1981 dictum of Lord Scarman that estoppels bind individuals on the ground that it would
unconscionable for them to deny what they have represented
or agreed, but these concepts of private law should not be extended into “the public
law of planning control, which binds everyone”. Lord Hoffmann said:
“ There is of course an analogy between a private
law estoppel and the public law concept of a legitimate expectation created by a public
authority, the denial of which may amount
to an abuse of power . . . But
Page 12
it is no more than an analogy because remedies
against public authorities also have to take into account the interests of the general
public which the authority exists to promote.”
Lord
Hoffmann added:
It seems to me that in this area, public law has
already absorbed whatever is useful from the moral values which underlie the private
law concept of estoppel
and the time
has come for it to stand upon its own two feet.
Others may disagree, feeling that the
idea of the executive being stopped by the courts from profiting out of its misleading
of Parliament has a superior claim to that of the
weaker concept of mere disappointed expectation. Why should public law not gracefully
and overtly admit its use of a valuable private law concept admittedly borrowed?
Conclusion
The conclusion to be drawn from the above
is it is submitted as follows. Pepper v Hart should for the future be accepted as relating
to executive estoppel rather than statutory
interpretation. In the latter context the constitutional arguments frequently deployed
against relying on the executive’s intention as trumping the intention arising
from the legislative words may now be regarded as conclusive.
Francis Bennion, a research associate of the University of Oxford Socio-Legal Centre,
is a retired Parliamentary Counsel and member of the University of Oxford Law Faculty.
--------------------------------------------
1 [1993] AC
593.
2 Some arguments presented here have been put forward in two previous articles of mine, “How They
All Got It Wrong in Pepper v Hart”, [1995] Brit. Tax Rev. 325, www.francisbennion.com/1995/003.htm
and “Pepper v Hart and Executive Estoppel”, 170 JPN (11 March 2006) 167, www.francisbennion.com/2006/012.htm.
3 On 18 April 2005 the Board was merged with HM Customs and Excise Departments to form the Commissioners
for Her Majesty’s Revenue and Customs: see Commissioners for Revenue and Customs Act 2005.
4 On law-text analysis see Francis Bennion and Kay Goodall, “A New Skill? Law-Text Analysis” [2006]
3 Web JCLI, www.francisbennion.com/2006/030.htm.
5 “Pepper v Hart: Why It Happened” (typescript of unpublished talk given at a seminar on
Pepper
v Hart held at Balliol College, Oxford, on 15 and 16 April 1994), p. 3.
6 Select comminution reproduces the relevant words of the enactment(s) omitting inapplicable words: see
F. A. R. Bennion, Statutory Interpretation (4th edn, 2002), pp 342-344.
7 As to the nature of judgment in this connection see two previous articles by the present author in
this
journal: “Distinguishing judgment and discretion”, [2000] PL 368; www.francisbennion.com/2000/042.htm, “Judgment
and discretion revisited: pedantry or substance?” [2005] PL 707, www.francisbennion.com/2005/059.htm.
8 In a case where the relevant wording, contained in the Income Tax Act 1952 s. 161(6), was virtually
identical,
it was held that “a proper proportion” of expenses had to be ascertained by reference to
fairness: see Westcott (Inspector of Taxes) v. Bryan [1969] 2 Ch 324 at 343-344.
9 [1990] 1 W.L.R. 204 at 209. Emphasis added.
10 [1991] Ch. 203 at 214.
11 [1993] AC 593 at 611-612.
12 Ibid at 612.
13 For the principle that every word of an enactment is to be given meaning where possible see F. A.
R.
Bennion, Statutory Interpretation (4th edn, 2002), pp 993-994.
14 [1993] A.C. 593 at 643-644.
15 [1991] Ch. 203 at 216-217.
16 [1993] A.C. 593 at 613.
17 [1993] A.C. 593 at 626.
18 The need to treat the phrase “a proper proportion” in this variable way was demonstrated
by Martyn Gowar a [1993] B.T.R. 185.
19 [1993] A.C. 593 at 623.
20 [1993] A.C. 593 at 625-630.
21 [1993] A.C. 593, per Lord Browne-Wilkinson at 629.
22 [1993] A.C. 593 at 630.
23 [1993] A.C. 593 at 641.
24 [1993] A.C. 593 at 642.
25 See [1993] A.C. 593 at 625.
26 Loc. cit., p. 7.
27 Ibid.
28 Loc. cit., p. 8.
29 [1993] A.C. 593, per Lord Browne-Wilkinson at 630.
30 The story of these ministerial assurances was spelt out by Lord Browne-Wilkinson at pp 626-630.
31 [1993] A.C. 593 at 616.
32 Ibid at 619.
33 Ibid at 636.
34 R (on the application of Westminster City Council) v National Asylum Support Service [2002] UKHL 38,
[2002] 4 All ER 654.
35 Lord Steyn’s observations are in paras [2]-[6] of NASS.
36 Para [6] (emphasis added).
37 Ibid.
38 R v A [2001] UKHL 25, [2001] 3 All ER 1, at [81].
39 Ian McLeod, Legal Method, 6th edition (Palgrave, forthcoming). I am grateful to Mr McLeod for facilitating
this reference and sharing his thoughts on the topic with me.
40 Wilson v First County Trust Ltd, [2003] UKHL 40, [2003] 4 All ER 97, at [113.]
41 Roderick Munday, “Explanatory Notes and Statutory Interpretation”, 170 JP 124 (4 March
2006),
at 125.
42 Note of Plenary Session (chaired by Richard Gordon QC) of Seminar on Pepper v Hart held at Balliol
College
Oxford on 15 and 16 April 1994, p. 16.
43 R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, [2002] 4 All ER 58.
44 See para. 33.
45 See para. 34.
46 See para. 35.
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