Pepper v Hart: A Footnote to Professor Vogenauer’s Reply to Lord Steyn
AbstractThis Note is intended to stand as a short supplement to the compelling article by Stefan Vogenauer entitled, ‘A Retreat from Pepper v Hart? A Reply to Lord Steyn’ published in the Journal at the end of 2005. 1 In his article, Professor Vogenauer calls in question the argument advanced by Lord Steyn in his article in the Journal, entitled ‘ Pepper v Hart : A Re-examination’. 2 In that article, Lord Steyn called for a retreat from the decision of the House of Lords in Pepper v Hart 3 concerning the circumstances in which reference may be made to Hansard as an aid to statutory construction and for a reinterpretation of the decision in line with a theory that a Minister speaking in Parliament who gives an explanation of the meaning or effect of a clause in a Bill should be taken to create a binding legitimate expectation that the executive will apply the provision, once enacted, in that sense. In this Note, I express my agreement with Professor Vogenauer’s argument, and seek to support it with some additional points under three heads: (1) the proper interpretation of Pepper v Hart and its status as authority; (2) the basis in principle for adhering to that interpretation; and (3) conceptual difficulties attached to Lord Steyn’s legitimate expectation thesis.