Statutory Forebears: Legislative Evolution as a Means of Statutory Interpretation

Abstract

Legislative evolution is the technique of examining successive changes made to a statute, as to draw clues of the drafter’s intent. In our modern age of contextual interpretation, prior legislative interventions may offer compelling evidence of Parliament’s intent in enacting any given provision. Despite evolution’s interpretative significance, however, there exists no consolidated study of its theory and operation. Aimed to assist both academic and practitioner, this article seeks to contribute to the law of statutory interpretation by providing the first comprehensive survey of evolution as an interpretative technique. Codifying existing scholarship of United Kingdom, Canada, and Australia, it analyses evolution’s methodology and use, its distinct identity from legislative history, its admissibility and weight, as well as offering original analysis on such issues as evolution’s use as an extrinsic aid. Moreover, the issue of subsequent evolution (the interpretation of a statute in light of its successor enactments) is considered. On this issue, the author surveys the divergent approaches taken by different Commonwealth courts before ultimately advocating in favour of recourse to subsequent evolution, arguing that to do otherwise would render a later statute unnecessary or futile.

INTRODUCTION

Legislative evolution examines successive changes made to a statute in the hope of drawing clues as to the drafter’s intent. In The Mayor’s Office for Policing and Crime (Appellant) v. Mitsui Sumitomo Insurance Co et al.,¹ the Supreme Court of the United Kingdom determined that consequential losses were not recoverable under the Riot (Damages) Act 1886 (the ‘Act’). Of equal interest to the specific holding, however, was the degree of reliance placed on legislative evolution. Namely, by examining the Act’s prior lineage, the Court identified a previous legislative trend away from unrestricted recovery.

Although providing an excellent example of evolution’s insight, Mayor’s Office nowhere discussed evolution as an interpretative technique. A review of prior case law and academic texts shows limited judicial or academic commentary on this interpretative tool, with scattered references merely addressing discrete aspects of the technique. Aimed to assist both academic and practitioner, this article seeks to contribute to the law of statutory interpretation by providing the first comprehensive survey of evolution’s theory and application. It codifies existing Commonwealth scholarship respecting evolution’s doctrinal rationale, methodology and use, distinct identity from legislative history, admissibility, and weight, and offers original analysis respecting potential practical concerns regarding evolution as an extrinsic aid (such as the effort of researching beyond a statute’s four corners, as well as reliability). Finally, the issue of subsequent evolution is examined (i.e. the interpretation of a statute in light of its successor enactments). An issue of divergent approaches in Commonwealth courts, the author advocates in favour of recourse to subsequent acts, arguing that to do otherwise risks rendering a later statute unnecessary or futile.

MAYOR’S OFFICE V. MITSUI SUMITOMO INSURANCE

The History of the 1886 Act

Mayor’s Office began amidst the London riots of August 2011 when flames left a total loss of stock and plant in a Sony warehouse. Public liability for riot damages had long been a feature of English law, and the injured parties soon brought claims against the police under the Act. By the time the case reached the Supreme Court, a single issue remained: were consequential losses of rent or profit recoverable under the Act? The provision at issue was section 2(1) of the Act:

2(1) Where a house, shop, or building in a police area has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as hereinafter mentioned shall be paid out of the police fund of the area to any person who has sustained loss by such injury, stealing, or destruction; but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise.²

The above words did not make immediately clear whether consequential damages were recoverable. For instance did the phrase ‘loss by such injury, stealing, or destruction’ require only causation in order for coverage to apply? If so, the police would be liable for a loss so long as it consequentially resulted ‘by’ such the physical destruction which triggered the Act. Or, was the proper emphasis ‘by such injury, stealing or destruction’? Such would limit compensation to the direct physical damage suffered.

In the Commercial Court of the High Court, Justice Flaux concluded that section 2(1) of the Act provided compensation only for direct physical damage. The Court of Appeal disagreed, however, determining that the Act provided a right to compensation for all heads of loss, including consequential loss. The Court of Appeal found that the words ‘sustained … by such injury, stealing, or destruction’ could linguistically include consequential losses. It also emphasized that riot damage laws were remedial and were, therefore, to be liberally construed. Moreover, it felt there was the historical context for the imposition of such broad liability, considering that predecessor enactments seemingly placed the hundred (the forerunner to the police authority) in the role of a surety, with the rioters’ liability in damages transferred to the public authority. As such, just as ancient trespassers would have been liable in tort for all consequential losses, so the local authority—now standing in their place—continued to incur such liability.

Mayor’s Office and the Supreme Court

A different analysis prevailed before the Supreme Court. Giving judgement for the Court, Lord Hodge determined that the police did not, in fact, stand in the shoes of rioters for all purposes of compensation. Rather the Act stood as a self-contained regime of compensation, never intended to reflect all damages available at tort. As such, consequential losses of rent or profit were not recoverable.

It is submitted that a careful reading of the Act and its predecessor enactments support Lord Hodge’s determination. Firstly, the Court’s interpretation was consistent with the broader internal context of the Act as a whole, as other provisions of the 1886 Act clearly excluded recovery for damage to persons or vehicles. Such a conspicuous restriction on compensation suggested that the Act was, in fact, a distinct statutory scheme, not co-extensive with the full tortious liability of a trespasser at common law.

More importantly, and having recourse to legislative evolution, a review of the successive riot laws showed that the surety principle was not as well-established as the claimants argued. Laws of hue and cry—old predecessors to the Act—had in fact allowed the community to escape liability for damages if public outcry were raised and the offenders caught. Such an exception undermined any notion that the authority had always stood unfailingly in the place of rioters. A key contextual guide underlying the Court of Appeal’s conclusion was therefore eliminated.

Finally, evolution showed that the lineage of the Act as a whole evinced a clear trend of gradually restricted compensation. A side-by-side comparison of the Act with its predecessor, the Remedies against the Hundred (England) Act 1827 highlighted that the earlier enactment had confined statutory compensation directly to ‘damage … to any fixture, furniture, or goods’. As the preamble of the later 1886 Act was itself adoptive of the pre-existing law, section 2(1) was to be interpreted in light of this deliberate narrowing of recoverable damages.

Mayor’s Office illustrated legislative evolution at its essence. By comparison of versions present and past, the 1886 Act was shown to reflect a pre-existing legislative constricting of compensation. Armed with this context, the Court was able to choose the interpretation best reflecting this intention.

LEGISLATIVE EVOLUTION AS A METHOD OF INTERPRETATION

What Is Legislative Evolution?

In Bennion on Statutory Interpretation, legislative evolution is characterized as follows:

Where a subject has been dealt with by a developing series of Acts, the courts often find it necessary, in construing the latest Act, to trace the course of this development. By seeing what changes have been made in the relevant provisions, and why, the court can better assess the intended current meaning.³

Evolution as a technique has received clear acceptance by English courts, even if have they rarely analysed its theoretical foundations. An example of its use came in Jennings v. United States Government,⁴ where the applicant sought to avoid extradition to California on a charge of manslaughter arising from a motor vehicle accident.

The applicant contended that her conduct as relied on by the United States government did not amount to an extradition crime under the United Kingdom’s extradition treaty. She argued that the only extradition crime her conduct could give rise to was the common law offence of manslaughter, which she claimed no longer existed following the enactment of certain 1956 and 1977 road traffic legislation.

She argued that the introduction of the statutory offence of causing death by reckless driving, possessing the same elements as motor manslaughter, had implicitly repealed the common law offence of manslaughter. In other words, Parliament could not have intended the two offences, one common law and the other statutory, to both co-exist after 1977. The issue was whether the common law offence of manslaughter had been impliedly repealed. If it had, the California charge would raise no presently existing extraditable offence under English law.

The House of Lords ultimately found that the offence of manslaughter remained intact under English law, even though it was also now a distinct statutory offence. In so concluding, Lord Roskill compared the successive acts to show that each had continued to treat manslaughter as a still-existing offence:

But, my Lords, in considering this submission it is important to observe one matter in connection with the 1956 Act. Schedule 4, para 5, which deals with disqualifications and endorsements, deals not only with convictions for the new statutory offence but also with ‘manslaughter by the driving of a motor vehicle’ as among the offences for which disqualification or endorsement may be ordered. This provision was reproduced in the 1960 Act, a consolidating Act: see ss 104 and 111 and Sch 11, paras 1 and 2. These separate manslaughter from the statutory offence and thus treat manslaughter, or in Scotland culpable homicide, as separate from the statutory offence in this connection.⁵

Lord Roskill’s side-by-side examination of prior regimes offered still another aid to intent. Namely, manslaughter had never been explicitly repealed even while other offences had been specifically abolished. For instance the 1977 Act had expressly repealed the common law offence of conspiracy, but contained no similar revocation of manslaughter in it or preceding acts:

The 1977 Act, on s 50 of which counsel relied so strongly as giving rise to an implied repeal of the relevant part of the common law of manslaughter, itself contains an express repeal of the common law offence of conspiracy in clear and explicit language. I refer to s 5 which provides that ‘the offence of conspiracy at common law is hereby abolished’. If Parliament had in the 1977 Act intended to abolish the relevant part of the common law offence of manslaughter I should have expected to find a similar provision somewhere in the legislation between 1956 and 1977. My Lords, there is none.⁶

Legislative evolution ultimately proved determinative in Jennings, offering the Court ‘plenty of indications of an intention that that common law offence should remain fully intact after 1956 and after 1977 as it had before the successive statutory offences had ever been created’.⁷

A different use of evolution came in Seal v. Chief Constable of the South West of the Police.⁸The House of Lords utilized the technique to ascertain the scope of s. 139 of the Mental Health Act 1983, which required the consent of the High Court or the Director of Public Prosecutions before any party could bring proceedings against the Chief Constable of South Wales for false detention. As no consent had been obtained by Mr Seal, the issue was whether his proceedings were invalid, or could instead be cured retrospectively.

Lord Bingham held the proceedings to be a nullity. His examination of successive statutory versions revealed that since the leave requirement’s introduction in 1930, a clear consensus of judicial and academic opinion had held s. 139 to void any proceeding commenced without leave (Lord Bingham appeared to rely on the presumption that where a provision has previously received a judicial construction, any subsequent re-enactment suggests an adoption of the existing interpretation):

While, as already noted, the restriction on access to the court in s 141 was the subject of criticism before 1982, the House has been referred to no judicial opinion and no scholarly commentary suggesting that failure to obtain the required leave was a procedural irregularity which might be cured rather than a flaw which rendered the proceedings null. When Parliament legislated in 1982 to 1983 there was, as it would seem, a clear consensus of judicial, professional and academic opinion that lack of the required consent rendered proceedings null, and Parliament must be taken to have legislated on that basis.

…

But the words first introduced in s 16(2) of the 1930 Act (‘No proceedings, civil or criminal, shall be brought’) appear to be clear in their effect and have always been thought to be so. They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before. They were re-enacted with knowledge of the effect the courts had given to them. To uphold the decision of the three courts which have already considered the issue in this case and decided it in accordance with a clear consensus of professional opinion is not to sanction a departure from what Viscount Simonds rightly considered to be a fundamental rule.⁹

Unlike in Jennings, the evolution in Seal did not centre on the internal textual changes between enactments. Nevertheless, its reasoning should still be classified as ‘evolutionary’, in that it utilized the technique’s core function of drawing interpretive background from a comparison of prior versions. The evolutionary context offered in Seal was the previous judicial and academic opinion of earlier similar provisions. A comparison of those prior acts—as well as the constructions they had received—offered background from which legislative intent could be drawn.¹⁰

…

Legislative evolution has gained acceptance beyond English shores. In the Australian decision of Geaghan v. D’Aubert,¹¹ the New South Wales Court of Appeal explained how the development of a statutory scheme may assist in ascertaining legislative intent:

It is not unusual for courts to examine a prior statutory provision dealing with the same subject matter to enable them to construe a current statute. The reason is plain. The history of the legislative scheme may assist in ascertaining the legislative intent.

Pearce and Geddes (Statutory Interpretation in Australia (5th Edition)) have commented on the good sense of this approach. The learned authors say [at p. 73]:

If one views the whole scheme of the legislation, it is possible to see the way in which the legislature is dealing with the subject matter: whether it is extending or contracting benefits; whether it is increasing penalties and so on. Such information must be of use to a court in its endeavour to understand the legislature’s wishes.¹²

The Supreme Court of Canada has similarly described evolution as ‘one of the most effective ways of establishing legislative purpose’:

98 According to Professor Sullivan, ‘[o]ne of the most effective ways of establishing legislative purpose is to trace the evolution of legislation from its inception, through successive amendments, to its current form’: Sullivan, at p. 218. The author asserts as well, at p. 218:

Tracing may expose the legislature’s past decision to adopt a new policy or strike out in a new direction; it may reveal a gradual trend or evolution in legislative policy; or it may reveal the original purpose of legislation and show that this purpose has remained constant through successive amendments to the present. [Emphasis added.]

99 It is well established that the legislative evolution may be used to interpret a statute as prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to a statute: Ulybel Enterprises, at para. 33; Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 667; Sullivan, at pp. 471–72.¹³

The Rationale and Methodology of Legislative Evolution

The rationale of evolution rests upon an examination of the differences or similarities between prior wordings. By showing how a statute has been modified during its existence, profound clues may be drawn as to the drafter’s intent.

Suppose that several consecutive versions of a provision show a clear consistency in wording, only to then receive a sudden amendment signifying a new legislative direction. A similar signal of intent would be offered by the addition of words on a point previously silent. The stronger the contrast with the prior text, the more weight given to the change as an indicator of intent. Guidance need not always come from textual changes however. In some contexts, consecutive versions can illuminate intent by showing that a provision had, in fact, remained constant through successive amendments.

In terms of methodology, it is submitted that evolution will generally involve three steps.¹⁴ First, one must find the origin of the provision under interpretation. A clear starting point must be identified in order to then trace the provision’s subsequent evolution (note also that some provisions may not be created by an earlier statute, but come ultimately from the common law). Second, the meaning and significance of the origin should be clearly established, to fully understand ‘the anchor on which subsequent analysis depends’.¹⁵

Finally, the interpreter will examine step-by-step how the particular provision reached its present wording in the statute book. The significance of any changes will be determined, with superficial differences separated from the substantive.

Legislative Evolution as Part of Context

The doctrinal justification for evolution stems from its provision of ‘context’. Gone are the days when courts strictly look for the literal meaning of language. This purposive approach now sees courts ‘prepared to look at much extraneous material that bears on the background against which the legislation was enacted’.¹⁶ Modern courts, therefore, construe statutory texts in light of what surrounds them, whether it be other contemporary statutes, or the social and political history existing at the time of a law’s passage. As words take colour from the circumstances of their use, an ambiguity may disappear when properly situated. Mayor’s Office, by example, pointed to the proper interpretation by placing section 2(1) into the context of a pre-existing trend of narrowing compensation.

Few laws are made for the sake of their details, and courts should search for and defer to their animating spirit when choosing amongst interpretations. As such, one scholar has observed that ‘judicial attention to … legislative evolution may be justified less for what it may say about specific legislative intentions, than for what it might suggest about the reasons why a statute or amendment was enacted and the objects at which the statute or provision aims’.¹⁷ By illuminating the statutory background against which legislation was enacted, evolution may provide in guidance at two levels of generality. In some instances, a series of prior amendments may strike at how the disputed words apply to the very fact situation at hand. More commonly, however, evolution will merely reveal the law’s overarching purpose. For example the evolution of prior acts may show a prior deficiency which was remedied by the present provision. Ascertaining this spirit of the act will allow the court to select the interpretation promoting such purpose.

The Presumption Underlying Legislative Evolution

Evolution operates on the presumption that changes to an enactment are made deliberately. Lord MacMillan wrote in D.R. Fraser & Co. Ltd. v. Minister of National Revenue that when ‘an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately’.¹⁸ Lord Bingham similarly observed in Quintavalla v. Secretary of State, that every statute ‘other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life’.¹⁹

Such a presumption is sensible. Parliamentary resources are limited and a legislature would hardly speak if there was no reason to do so. When the legislature troubles to use different words in replacing a prior provision, the interpreter is entitled to draw signals of intent from such change. Of course, intentional change is not always substantive change. For instance a consolidation act is usually a mere codification of existing legislation, with no meaningful amendment intended. Equally, other amendments may simply be intended to modernize style rather than to change substance, or clarify existing rights rather than create new ones.²⁰

Legislative Evolution Versus Legislative History

Having sketched the outline of legislative evolution, we pause to distinguish it from its more illustrious cousin, legislative history. While both techniques share similarities as external aids, certain differences justify their separate classification.

Legislative ‘evolution’ examines the text of prior enactments passed by Parliament. In contrast, legislative ‘history’ looks to extrinsic materials which preceded the enactment of a law, such as reports of Royal Commissions, White Papers, or ministerial statements. The distinction between the two was articulated by the Supreme Court of Canada as follows:

Legislative evolution consists of the provision’s initial formulation and all subsequent formulations. Legislative history includes material relating to the conception, preparation and passage of the enactment [citations omitted].²¹

Despite this distinction, evolution is too often subsumed within the concept of legislative history. Indeed, Lord Hodge in Mayor’s Office referred to the evolution of section 2(1) as ‘legislative history’.²² Similarly, Cross on Statutory Interpretation defines legislative history as including, ‘… the legislative antecedents of the statutory provision under consideration, i.e. corresponding provisions in previous enactments since repealed and re-enacted with or without modification[.]’²³

Such treatment fails to reflect how the techniques differ in concept and reliability. As Professor Ruth Sullivan has observed, evolution is confined to the four corners of previous enactments and consequently raises different considerations than those governing ministerial statements or Hansard passages:

… the legislative evolution of a provision is not extrinsic to the legislative text; rather, it consists of the text itself—or more precisely, the succession of enacted texts in which the law has been embodied over time. This contrast with other forms of legislative history, which express the opinion of participants in or commentators on the legislative process or set out facts from which the intention of legislative might be inferred.²⁴

Legislative evolution, therefore, avoids certain potential weaknesses which can plague legislative history, such as whether a given ministerial remark revealed Parliament’s collective legislative intent, or was perhaps expressed merely for public consumption or to reflect the intent of the individual speaker. With legislative history, the intent of the government or a responsible minister cannot reliably be equated with the purpose of Parliament itself. In contrast, rather than remarks made by one segment of the legislature amongst many, evolution instead looks to text already blessed by the collective assembly. To fail to distinguish the two techniques risks obscuring these differences.²⁵

Admissibility and Weight

The central question regarding the use of legislative evolution in statutory interpretation should be one of weight but never admissibility. To make facial ambiguity a prerequisite for consideration would be an outdated ‘vestige of the plain meaning rule’.²⁶ Moreover, ambiguity is a conclusion reached at the end of interpretation and therefore cannot be held up as a preliminary threshold test.²⁷

No matter how plain certain statutory words may seem, reference to evolution should always be available. Until read in context, a court cannot:

… decide whether or not any real doubt exists as to the meaning of a disputed enactment (and if so how to resolve it) until it has first discerned and considered, in the light of the guides to legislative intention, the overall context of the enactment, including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factor situation of the instant case.²⁸

Concerns about relying on aids outside the four corners of the statute itself can be dealt with through the twin considerations of relevance and reliability. Where text is already clear on its face, any contrary meaning suggested by external legislative evolution will be addressed as a matter of weight, balancing clarity of grammatical meaning versus a purposive construction. Unless the evolution is exceptionally persuasive, plain statutory text will often outweigh any special sense different than its ordinary grammatical meaning.

Various factors will guide a court in determining the importance to attach to evolution on a case-by-case basis.²⁹ The clearer the evidence of legislative change, the more compelling the guidance. In some cases, a signal of intent may be unambiguous, as where the legislature has substituted ‘may’ for ‘shall’ to clearly replace a duty with a discretionary power. At other times the inferences offered by evolution may be more equivocal.

Weight will be diminished where one cannot readily conclude what was intended by a textual revision. It may be that no change in the law was meant, as where an amendment is adopted merely to clarify the existing law, to make explicit something previously implicit, or simply to polish language.³⁰ In essence, as with any other interpretative technique, evolution will on occasion lead nowhere. As Craies on Legislation observes:

27.1.14.3 Legislative history, as distinct from Parliamentary history, is often alluded to in cases about statutory construction … but the results are often inconclusive, particularly because … it will often be unclear to what extent if any Parliament intended to depart from what went before, particularly in matters of relatively small detail.³¹

Even where evolution does evince a clear change in the law, the change may be peripheral to the specific ambiguity at issue. In short, any question of interpretation may raise a number of aids to construction, some leading one way and others another. Evolution will comprise but one of these factors, and will bow to those offering clearer guidance in a specific circumstance.

Legislative Evolution as an Extrinsic Aid: Practical Concerns

Do questions of time and expense argue against the effort consumed in examining prior acts? The answer is no. It is up to counsel to decide how much effort to invest in research, but in any event consulting prior statutes will rarely add greatly to the cost of litigation. Internet technology offers instant access to much previous legislation, providing the ability to search for keywords within seconds. Although made in the context of legislative history, the following comments of Lord Griffiths still ring true:

I have to confess that on many occasions I have had recourse to Hansard, of course only to check if my interpretation had conflicted with an express Parliamentary intention, but I can say that it does not take long to recall and assemble the relevant passages in which the particular section was dealt with in Parliament, nor does it take long to see if anything relevant was said. Furthermore if the search resolves the ambiguity it will in future save all the expense that would otherwise be incurred in fighting the rival interpretations through the courts.³²

However, there is the second issue of whether citizens should need to go beyond plain statutory text to a law’s evolution? The rule of law requires that citizens be able to know the legal text by which they are regulated. Lord Diplock adverted to this concern in Fothergill v. Monarch Airlines Ltd.:

The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament’s real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation.³³

As such, using less accessible extrinsic materials can be contrary to legal certainty. In R v. Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme Ltd., Lord Nicholls advocated circumspection in allowing extrinsic materials ‘to displace meanings which are otherwise clear and unambiguous’:

This constitutional consideration [that citizens should be able to rely upon what they read in an Act of Parliament] does not mean that when deciding whether statutory language is clear and unambiguous and not productive of absurdity, the courts are confined to looking solely at the language in question in its context within the statute. That would impose on the courts much too restrictive an approach. No legislation is enacted in a vacuum. Regard may also be had to extraneous material, such as the setting in which the legislation was enacted. This is a matter of everyday occurrence.

That said, courts should nevertheless approach the use of external aids with circumspection. Judges frequently turn to external aids for confirmation of views reached without their assistance. That is unobjectionable. But the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity. Sometimes external aids may properly operate in this way. In other cases, the requirements of legal certainty might be undermined to an unacceptable extent if the court were to adopt, as the intention to be imputed to Parliament in using the words in question, the meaning suggested by an external aid. Thus, when interpreting statutory language courts have to strike a balance between conflicting considerations.³⁴

Despite the tension between extrinsic aids and the need for reliability, the modern emphasis on purposive interpretation has ultimately swung the balance in favour of finding the true intention as expressed by Parliament. While one should indeed use external aids with circumspection, courts are rightly prepared to look at extraneous material where they will shed light on purpose, allowing the court to select the meaning which best remedies the problem.

Moreover, evolution cannot be singled out as improperly problematic for either of the above issues. Prior statutory versions will not typically give rise to issues of accessibility. They are most often available in online form, for the world to see. Moreover, most ordinary citizens ascertain their obligations through counsel, who are trained to efficiently examine different sources of law—including prior statutory versions—in the course of advising their clients.³⁵ Ultimately, there would be no sound basis to prohibit external resources like legislative evolution, and yet overlook the many other instances in which courts go beyond a statute’s text. For example case law is often crucial to the interpretation of statutory text, but is scarcely more immediately accessible to ordinary citizens than prior versions of an act.

Subsequent Evolution

If a provision may be interpreted in light of its predecessor versions, may it also be interpreted in light of its successors? Suppose a court is tasked to determine the scope of a certain provision in force in 2010. In examining the statute, the court discovers that there has been a subsequent broadening of the provision by an amendment passed in 2015. In determining the effect of the earlier 2010 enactment, what recourse could a court have to the 2015 wording?

Two major approaches have developed in Commonwealth jurisprudence. The first approach is exemplified by the Australian courts, which allow an amending statute to throw light on an earlier enactment. In the oft-cited decision of Deputy Federal Commissioner of Taxes (SA) v. Elder’s Trustee and Executor Co. Ltd., the Australian High Court said:

‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’ (per Lord Atkinson). In Cape Brandy Syndicate v. Inland Revenue Comrs, Lord Sterndale said: ‘I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier’ (citations omitted).³⁶

The Australian reasoning appears to be that to refuse to consider an amending Act might risk rendering the later statute unnecessary or futile.³⁷

A divergent approach has emerged from Canadian decisions, with courts there refusing to consider subsequent evolution. The Supreme Court of Canada has held as follows:

What legal commentators call ‘subsequent legislative history’ can cast no light on the intention of the enacting Parliament or Legislature. At most, subsequent enactments reveal the interpretation that the present Parliament places upon the work of a predecessor.³⁸

Such reasoning assumes that later amendments—not present at the time of the crystallization of the words in the statute—can merely reveal the interpretation of a subsequent Parliament on the work of a predecessor. In contrast, such reasoning assumes that it is solely the judgement of the courts, and not lawmakers, that matters. Moreover, Canadian courts suggest that to consult subsequent legislative versions could give the later enactments retroactive effect (impacting duties or rights which had already accrued prior to the legislation in question).³⁹

In England, early decisions supported the use of subsequent evolution. For instance in Attorney-General v. Clarkson, Sir Francis Jeune said:

But, having regard to that Act, it seems to me that it is impossible for us to take any other view of the construction of s 5 than that which, in my opinion, the Legislature have imposed upon us. Our duty is to interpret the meaning of the Legislature, and if the Legislature in one Act have used language which is admittedly ambiguous, and in a subsequent Act have used language which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, I think the judges have no choice but to read the two Acts together, and to say that the Legislature have acted as their own interpreters of the earlier Act.⁴⁰

More recent consideration of the question came in R (on the application of Jackson and others) v. Attorney General.⁴¹ In his judgement, Lord Nicholls considered the interpretative guidance offered by Parliament’s subsequent use of certain 1949 amendments to the Parliament Act 1911. Lord Nicholls regarded evidence of the subsequent ‘general understanding’ of Parliament, reflected in the conduct of legislative business over half a century, as a ‘strong pointer’. However, Lord Nicholls made clear that a particular subsequent interpretation of earlier legislation does not preclude the courts from ruling the later parliamentary understanding to be mistaken.⁴²

In separate reasons, Lord Carswell also permitted use of subsequent legislative evolution, holding that a consistent Parliamentary interpretation could offer ‘reinforcement of one’s construction of legislation’:

The extent to which use may be made of subsequent events is less clear cut, but at its lowest one may obtain reinforcement of one’s construction of legislation from the fact that the same interpretation has been adopted over a considerable period. That is not to say that the courts may not reverse a long-held error of interpretation, if satisfied that it is right to do so.⁴³

The question of subsequent evolution arose the next year in Isle of Anglesey County Council v. Welsh Ministers.⁴⁴ There Carnwath LJ (as he then was) found no settled view as to the permissible use of subsequent legislative evolution under English law.

On the facts before him, Carnwath LJ ultimately held it permissible to take account of subsequent evolution determining the vires of certain orders made under the Sea Fisheries Act 1868. He examined later orders approved by Parliament under the 1868 Act, as well as Parliament’s passage of a 1967 Act with knowledge of these extant orders.

While Carnwath LJ ultimately endorsed subsequent evolution, he did so not as much for any ability to reinforce interpretative signals of intent, but on the basis of reliance interests:

It is unnecessary in my view to attempt a general reconciliation of these various conflicting strands of authority or to explore the full breadth of the principle which they illustrate. My own respectful view is that Lord Blackburn’s more liberal view is supported by considerations of common sense and the principle of legal certainty. Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.⁴⁵

English law, therefore, lacks any ‘consistent or settled view’⁴⁶ of the use of subsequent evolution. The issue is therefore ripe for re-examination in light of the divergent approach discussed above. This author suggests that the Australian position is ultimately to be preferred, if for no other reason than that it avoids the illogical result of rendering an amending legislation futile. Recourse to subsequent amendments reflects the simple reality that where:

… a legislature has subsequently made particular provision to cover relevant events or circumstances [it] may provide an indication that the legislation as earlier enacted was not intended to cover those events or circumstances at an earlier time.⁴⁷

However, a more difficult question arises where an earlier provision had already been judicially interpreted, but only then receives amendment which suggests another interpretation. In such case, a court should be extremely loath to retrospectively revise a settled construction on nothing more than guidance offered by later amendments.

CONCLUSION

In our modern age of purposive and contextual interpretation, evolution can offer persuasive guidance in ascertaining Parliament’s intent. Within the theoretical framework of statutory interpretation, the role of evolution rests in its ability to place a provision in its context. When Parliament alters a statute, it does so for some intelligible purpose, whether to clarify meaning, correct a mistake, or change the law. Examination of such prior interventions may, therefore, indicate the background and purpose of the present wording.

The methodology of evolution will look first to the genesis of an ambiguous provision. Once the origin is understood, the interpreter will trace each step in the development of the provision. While evolution is extrinsic by virtue of looking outside the four corners of the enactment under interpretation, it avoids certain frailties inherent in other external interpretative aids, such as legislative history. Rather than relying on remarks which too often may only represent the intent of the government or a single Minister, evolution looks to text already known to represent the will of the legislature.

In terms of practical usage, the material required by evolution is also often publically available, something not always true of legislative history. As with any other external aid, it is the court who will ultimately weigh the guidance offered by evolution. Where changes are of a superficial, equivocal, or peripheral nature, little persuasiveness will attach. While weight may vary, however, threshold admissibility should not. Courts should always stand ready to consider prior versions, even where a provision appears clear on its face. While it starts with the words, a search for intent must not end with them.

Ultimately, modern statutory interpretation requires that a text be interpreted within its wider setting.⁴⁸ By placing ambiguous words against the backdrop of their predecessors, prior changes may illustrate a fixed and unchanging intent, or perhaps instead show that a material change was intended. In so doing, valuable insight will come from an enactment’s prior lineage. While evolution may not always provide the interpretative ‘crock of gold’,⁴⁹ as Mayor’s Office illustrates, it may well yield sufficient carats to tip the scales of justice to one side.⁵⁰

The author thanks Professor Stéphane Beaulac and Professor Dennis Pearce for their helpful comments. The usual caveats apply.

Footnotes

1

[2016] UKSC 18.

2

(Emphasis added).

3

Francis Bennion Bennion on Statutory Interpretation (5th edn Butterworths London 2008) 602.

4

[1982] 3 All ER 104, [1982] 3 WLR 450 (HL).

5

Ibid at 116 (emphasis added).

6

Ibid (emphasis added).

7

Ibid.

8

[2007] UKHL 31, [2007] 4 All ER 177.

9

Ibid at [15], [18] (emphasis added).

10

As Lord Radcliffe said in Welham v. DPP [1960] 1 All ER 805, [1961] AC 103, 123:

… I cannot doubt that the words ‘intend to defraud’ in the [Forgery Act 1913] must be understood in the light of any established legal interpretation that prevailed at the date of the passing of the Act.

In essence, by leaving the text as it was, the drafter is deemed to acknowledge the interpretation as correct. For a note of caution, however, see R v. Chard [1984] AC 279, [1983] 3 All ER 637. There Lord Scarman stressed that the above principle was only a presumption to apply ‘in circumstances where the judicial interpretation was well settled and well recognized [and which] must only yield to the fundamental rule that in construing statutes the grammatical and ordinary sense of the words is to be adhered to’.

11

(2002) 36 MVR 542; [2002] NSWCA 260.

12

Ibid at [22]–[23].

13

Marche v. Halifax Insurance Co. [2005] 1 SCR 47, 2005 SCC 6.

14

Ruth Sullivan Sullivan on the Construction of Statutes (LexisNexis Canada Markham, Ontario 2008) 577.

15

Ibid 578.

16

Pepper v. Hart [1993] 1 All ER 42, 50.

17

David G Duff, ‘Interpreting the Income Tax Act— Part 2: Toward a Pragmatic Approach’ [1999] CTJ 47(4), 741 at 758.

18

[1949] AC 24 (PC), 33.

19

[2003] UKHL 13, [2003] 2 AC 687.

20

Stéphane Beaulac Handbook on Statutory Interpretation: General Methodology, Canadian Charter and International (LexisNexis Markham, Ontario 2008) 256.

21

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) [2011] SCC 53, [2011] 3 SCR 471, [43].

22

Mayor’s Office (n 1), [18].

23

John Bell and Sir George Engle (eds) Cross on Statutory Interpretation (3rd edn (Butterworths London 1995).

24

Sullivan (n 14), 577. Among published treatises on statutory interpretation, Professor Sullivan’s text contains the most thorough and insightful analysis of evolution as an interpretative technique.

25

Ibid.

26

Sullivan (n 14) 576.

27

Stéphane Beaulac ‘Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?’ [1998] McGill Law Journal 43, 287, 322.

28

Bennion (n 3) 105.

29

See Lord Nicholls remarks on the weight given to extrinsic materials in R v. Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme Ltd. [2000] UKHL 61; [2001] 1 All ER 195, 138.

30

The distinction between a change in wording versus a change in meaning is embodied in various interpretation acts throughout the Commonwealth. For instance section 15 of the Australian Acts Interpretation Act 1901 (Cth) reads: 15AC Changes to style not to affect meaning where:

• (a) an Act has expressed an idea in a particular form of words; and

• (b) a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style; the ideas shall not be taken to be different merely because different forms of words were used.

31

Daniel Greenberg Craies on Legislation (10th edn Sweet & Maxwell London 2012) 898.

32

Mayor’s Office (n 1) 50.

33

[1981] AC 251, 279 (emphasis added).

34

[2000] UKHL 61, [2001] 1 All ER 195, 217 (emphasis added).

35

See the discussion in ‘Parliamentary Debates in Statutory Interpretation’ (n 27) 315.

36

[1937] ALR 27 (HCA), 32.

37

See for instance Grain Elevators Board (Vic) v. Dunmunkle Corporation [1946] 73 CLR 70, 86.

38

United States v. Dynar [1997] 2 SCR 462, [45].

39

Ibid at [46]. In the Canadian context, this prohibition on subsequent evolution is based in part on section 45(3) of the Interpretation Act, R.S.C., 1985, c. I-21, which declares:

The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law.

40

[1900] 1 QB 156, 165 (emphasis added).

41

[2005] UKHL 56.

42

See Birmingham City Corp v. West Midland Baptist (Trust) Association (Inc) [1969] 3 All ER 172, [1970] AC 874, 898.

43

Ibid [171].

44

[2009] EWCA Civ 94, [2009] 3 All ER 1110.

45

Ibid [43] (emphasis added).

46

Ibid [40].

47

Commissioner of State Revenue v. Pioneer Concrete (Vic) Pty Ltd. [2002] HCA 43, 54.

48

Bennion (n 3) 106.

49

This phrase was used by Lord Browne Wilkinson in Pepper v. Hart [1993] 1 All ER 42, 67. He there described counsels’ search through parliamentary materials for the ‘crock of gold, i.e., a clear indication of Parliament’s intentions’.

50

See ‘Parliamentary Debates in Statutory Interpretation’ (n 27) 324, where the author used this metaphor to describe the insight offered by legislative history.