An American Lawyer's Reflections on Pepper v. Hart

Pepper v. Hart gave American lawyers a number of insights into the English law of statutory interpretation. For example, English law as described by the case was not as tidy as had been thought. To be sure, the case does state what Americans had believed was true about English law: “[u]nder present law, there is a general rule that references to parliamentary material as an aid to statutory construction is not permissible (the exclusionary rule).” Notwithstanding that rule, however, Pepper recognized that the rule of exclusion had an important and long-standing exception. This exception applies when the legislative materials identify the mischief the statute was intended to cure, rather than the “meaning of the words used by Parliament to effect such cure.”

For an American lawyer who teaches statutory interpretation, Pepper is thus quite interesting because it accepts in a fundamental way the distinction between purposivism and intentionalism—a distinction that my students often have great difficulty discerning—and makes the application of an important rule of interpretation tum on that distinction. For almost a century, English courts have allowed legislative history in the form of reports of commissioners and white papers to be construed to infer the mischief to be cured, in other words the purpose of legislation, but not the intended meaning of the statutory text.