Trade Bill

Lord Mackay of Clashfern Excerpts

3rd reading (Hansard): House of Lords
Wednesday 20th March 2019 Lords Chamber

[Lord Davies of Stamford]

My Lords, I think the whole House—and indeed the country—should be very grateful to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for having raised this important matter, the effect of which goes way beyond this Trade Bill. I am very concerned that the assurances that have been given this afternoon by the Minister apply generally to all legislation and not just to this Bill. Perhaps I misunderstood the way that the Minister expressed herself on that: perhaps when she sums up she can once again make it absolutely clear.

Obviously, if it were the case that Explanatory Notes or ministerial Statements under the Pepper v Hart doctrine could be interpreted by the courts as being the equivalent of legislation, two appalling things would happen. One is that the Government would become extremely lazy in their drafting of legislation, because they could say, “Well, we can get it all right in the ministerial Statement in the House”, or something of that sort. The second, even more serious issue would be that a lot of legislation—the Explanatory Notes concerned or the ministerial Statements—would not be subject to analysis, debate and amendment by the two Houses of Parliament. That would be an absolutely disgraceful and tragic end to this particular tendency. So what has happened this afternoon is extremely important.

It is very important that what the Minister has said to the House this afternoon should be brought to the attention of all members of the Government. Once again, I would be very grateful to her if she would just repeat that these statements—I asked her specifically about the Pepper v Hart issue, but it applies to Explanatory Notes as well—apply generally to all legislation and are not tied in any sense to this particular Bill. This just happens, by accident, to be an occasion when we have two very distinguished noble and learned Lords taking part in the debate who spotted this issue, which if it had not been dealt with could have led to very serious consequences.

[Lord Mackay of Clashfern (Con)]

My Lords, as I think the only person in the Chamber who participated in Pepper v Hart, it is right to say that the decision of the majority in that case was that statements made by the mover of an amendment or a provision explaining how that provision was supposed to operate could be referred to in a case of ambiguity in order to resolve the true meaning of the phrase. I did not agree with that for reasons which I set out and with which I will not bother your Lordships now. The decision in Pepper v Hart still stands as the legal decision. I venture to hope that it will not be used very often because it is only in a case of ambiguity that it should be used at all. If you look at the detail of Pepper v Hart, you will see that statements relied upon as being explanatory leave a certain amount to be desired.