The Idea of Legislative Intention

Abstract

The courts and commentators often use phrases such as ‘the intention (or will) of Parliament’. Indeed, for many years Maxwell on the Interpretation of Statutes defined ‘statutes’ as being simply ‘the will of the legislature’. (See, for example, 11th edn, 1962, p. 1.) Similarly, in Ealing London Borough Council v. Race Relations Board [1972] 1 All ER 105, Lord Simon said: ‘It is the duty of a court so to interpret an Act of Parliament as to give effect to its intention’. On the other hand, it is not difficult to find statements, from both academic and judicial sources, which are sceptical about both the existence of ‘the intention of Parliament’ and its relevance to the process of statutory interpretation. Bell and Engle, for example, say that the phrase is ‘not so much a description as a linguistic convenience’ (Cross, Statutory Interpretation, 3rd edn, 1995, p. 28), while, according to Lord Reid, in Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg A G [1975] 1 All ER 810: ‘We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking not what Parliament meant but the true meaning of what they said’. Support for Lord Reid’s point may be found in Hilder v. Dexter [1902] AC 474, where Lord Halsbury declined to give judgment as to the meaning of the Companies Act 1900, on the ground that he had drafted the Act: ‘I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended, though perhaps it was not done. For that reason I abstain from giving any judgment in this case myself.’