The slow death of a dogma? The prohibition of legislative history in the 20th century

Abstract

It is commonly believed that the rule prohibiting reliance on legislative history as an aid to statutory interpretation was firmly in place in the United Kingdom, and indeed throughout the English-speaking common law jurisdictions of the world, long before the turn of the 20th century; and that the rule was set aside in the case of Pepper v Hart in 1992. However, an examination of the relevant cases and the canonical textbooks by Maxwell and Craies reveal that the rule was subject to a significant amount of disagreement at the turn of the 20th century, particularly with respect to the admissibility of commissioners’ reports to uncover the mischief of a statutory provision. This disagreement would not be completely resolved until the 1960s. With respect to other types of legislative history, there were prominent exceptional cases over the course of the 20th century; and there was a gradual acceptance of more types of legislative history as aids to statutory interpretation during the decades leading up to Pepper v Hart. Thus, the simple narrative description that the rule was firmly in place until it was set aside in 1992 must give way to a more complex narrative of disagreement and gradual decline. Meanwhile, as the rule lost traction in the United Kingdom over the course of the 20th century, a growing accumulation of justifications for the rule has been assembled, and an ongoing debate has been taking place about the efficacy of reliance on legislative history. Based upon the different trajectories followed in other English-speaking common law jurisdictions, and particularly the United States, the decline of the rule was not inevitable. It follows that the current state of affairs is likely to change over time.