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Legislation Talking Points

Talking Point 2 (14 Mar 2006)

2. New doctrine of Executive Estoppel

In an article published on 11 March 2006, Francis Bennion suggests that a new legal doctrine has emerged, which he calls ‘executive estoppel’. Under this the executive (that is the Government) is in law prevented from going back on an assurance as to its future conduct given in relation to a future Act of Parliament.

Bennion says-

‘ This doctrine obviously allows reference to Hansard to be made by the court in order to establish that the commitment in question was given. 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.’

Talking Point 1 (12 Jan 06) Deeming

1. How far does deeming go?

In Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64, [2006] 1 All ER 1, at [25], Lord Brown of Eaton-under-Heywood said ‘. . . it would in my judgment be quite wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. “The intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried so far as necessary to achieve the legislative purpose, but no further” – the effect of the authorities as summarised by Bennion STATUTORY INTERPRETATION (4th edn, 2002), p 815 (section 304)’.