Montesquieu and pepper (inspector of taxes) v. Hart

• Author: V.C.R.A.C. Crabbe
• Position: Visiting Professor of Law, Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 165-197

MONTESQUIEU AND PEPPER

(INSPECTOR OF TAXES) v. HART

V.C.R.A.C. CRABBE*

Introduction

In laying the foundation in Pepper (Inspector of Taxes) v. Hart,1 for

the relaxation of the exclusionary rule, Lord Browne-Wilkinson opined

inter alia that the courts should not "blind themselves to a clear

indication of what Parliament intended in using" the words which the

courts have found to be ambiguous, obscure, or would lead to an

absurdity. The arguments for and against the reign of the exclusionary

rule have been various. Bennion,2 in dealing with the "traditional view

... that you must do without external aids," has stated that,

"The ideal course would be to relive the history of the text in

question, covering not only the entire process of text-creation

and text-validation but also historical material such as reports

of official enquiries and other background sources. If we

soaked ourselves in all this, we would be in the best position

to judge the meaning of the text and whether it was clear or

doubtful."

Visiting Professor of Law, Faculty of Law, University of the West Indies,

Cave Hill Campus, Barbados.

Acknowledgment:

And did thou not, dear Ralph,

Encourage in others, with manner and graph,

Excellence of mind and spirit

To do without delay or limit

But with a wit and a smile

To travel an extra mile

In the pursuit of knowledge?

Your contribution, I here acknowledge.

1 [1993] 1 All E.R. 24 at p.64.

2 Statute Law, 2nd edn.

p.

101.

Vera Sacks3 considers it

"perverse that

judges

refuse to seek the legislative intent in the

very place where it might be found - that is, the background

materials to the statute - Law Commission Reports, White

Papers,

Hansard,

etc."

Sacks observes that, in Europe, the approach to the interpretation of

statutes is eclectic, and, although the practice varies from country to

country, no European or American would seek to ban their use.

Viscount Dilhorne in

Davis

v. Johnson4 has stated that what is said

by a Minister or member sponsoring a Bill is not a legitimate aid to the

interpretation of an Act. The Renton Committee5 strongly argued

against the use of extrinsic aids on the grounds of availability,

relevance, and reliability.

In

Black-Clawson

International

Ltd v. Papierwerke

Waldhof-

Aschaffenberg

A.G.,6

Viscount Dilhorne stated that,

"It does not follow that if one can have regard to the whole of

a committee's report, one might also be able to refer to

Hansard

to see what the Minister in charge of

a

bill said it was

intended to do. In the course of the passage of a bill through

both Houses there may be many statements by Ministers, and

what is said by a Minister in introducing a bill in one House

is no sure guide as to the intention of the enactment, for

changes in intention may occur during its passage."

Perhaps one telling argument against the admissibility of

parliamentary debates is Bennion's:

3 "Towards Discovering Parliamentary Intent" [1982] Stat. L.R. 143 at

p.143.

4 [1979] A. C. 264 at p. 337.

5 Cmnd.

6035,

paras. 19, 23.

6 [1975] 1 All E.R. 810 at

p.823.

"To allow an advocate to cite in court, as an indication of the

intended legal meaning of an Act, a statement made in

Parliament by the minister sponsoring the Bill for the Act,

surely must involve 'questioning' the ministerial statement in

the court."7

Ministerial statements involve questions of policy. It is the aim of

this article to discuss the traditional relationship between the Executive,

the Judiciary and the Legislature, and to see how far it can be said

that Pepper v. Hart is inconsistent with - or discordant with - that

relationship. For the government of the day is responsible for the

legislation that is intended to govern and guide us. That legislation may

be the subject of a legal action and thus lead to an interpretation by the

courts. The policies of the Executive may become a Bill. The

Legislature turns that Bill into an Act of Parliament. It is the function

of the Judiciary to construe or interpret that Act of Parliament. All that

falls within the parameters of Montesquieu's doctrine of the separation

of powers.

The

Doctrine of the Separation of Powers

The doctrine of the separation of powers did not originate with

Locke and Montesquieu. Its source lies in the ancient and medieval

theories of government. These theories argued that the government

should, as a whole, comprise of the different elements in society - the

monarchic, the aristocratic, the democratic interests. In Uganda, for

example, from time immemorial, the Kabaka, the Lukiiko, the

Katikkiro, the Omuwanika and the Omulamuzi were separate entities of

government, which kept a check on each other. The King ruled

through the Prime Minister. The Prime Minister governed through

Parliament. The Chief Minister in charge of

the

Treasury kept the reins

on the public purse. The Chief Justice and his judicial officers

administered justice and kept watch and ward over public affairs.

However, the first modern articulation of the doctrine of separation

of powers came from Montesquieu in his book, The Spirit of Laws.

Locke8 had argued earlier that the legislative powers of the state

should be divided between King and Parliament. In other words, Locke

had argued for a clear distinction between the King in Council and the

7 "Statute Law" [1992] All E.R. Annual Review, 369 at p.396.

8 Second Treatise on Civil Government.