The Story of Pepper v. Hart: Examining Legislative History Across the Pond

Abstract

Pepper v. Hart transformed the way judges and lawyers in Britain approach statutory interpretation by overruling more than 200 years of precedent and allowing courts to consult legislative history when construing enacted laws. The case involved teachers at a private school whose children were educated at one-fifth the fees charged to parents of other students. The question was how that employee benefit should be valued for income tax purposes under an ambiguously worded statute. The 1992 decision by the Law Lords (Britain’s highest court), relying heavily on legislative history, drew sharp academic criticism and triggered spirited debate among leading members of the judiciary. Eighteen years later, the rule of Pepper v. Hart survives relatively intact. Professor James J. Brudney makes use of lower court decisions, parliamentary materials, contemporary media accounts, and interviews with key participants to present the story of the case in depth. The chapter then assesses subsequent developments in the Law Lords and explains why - based on differences in legislative process and structure - the U.S. Supreme Court continues to rely on legislative history more often than do the Law Lords. The story of Pepper v. Hart offers important lessons for ongoing U.S. practice. The British legislative-history debate since 1992, involving issues of weight rather than admissibility, has been enlightening and productive when contrasted with the indeterminate disagreements over “pure textualism” that have characterized federal judicial approaches for twenty-five years. As the Law Lords have come to appreciate, legislative history is valuable as a selectively invoked resource - both to clarify ambiguous statutes in ways that further the design of Parliament and as a confirmatory aid to reinforce textual construction.