Last night I heard Lord Rodger of Earlsferry give the first Lord Renton memorial lecture – his subject being “interpreting statutes today” – and an interesting lecture it was, too.

He spoke about the importance of close reading of provisions in the context of a statute as a whole, and told the audience that he thinks counsel in the House of Lords do not pay enough atention to that – preferring to bombard the court with reams of extrinsic material like reports, white papers and so on. Lord Rodger clearly isn’t hostile to that – he said he thinks arguments about whether such material, including Hansard debates under the principles in Pepper v Hart – simply watse time and costs to no good purpose since almost all the material is irrelevant anyway. They might as well look at it, then ignore it, in other words.

He also made a point that seem obvious once someone points it out to you: that the use of extrinsic aids to intepretation has expanded as a result of technology: first, the advent of photocopiers in the 80s, which meant foreign cases, reports etc. could easily be put before a court if found, and then the rise of the internet which means things are very much more easily found, and Hansard more easily searched. Funny, he said, that this has resulted in a greater use of external material by judges just as the drafting of bills has become more professional and precise. In theory, the old-fashioned approach of focusing on textual analysis to the exclusion of anything else – and approach Lord Rodger showed had been and could be taken to ludicrous extremes – would be more appropriate now that it had been when it held sway. Lord Rodger clearly wishes less time were spent on external guff and more on detailed construction, though.

He also shared some sideways thoughts about legislation – for instance, that no UK statute includes the words roughly or perhaps. Not certainly, either.

2008-11-26T13:55:00+00:00Tags: , |