Legislative Context

The legislature makes known its intended meaning by uttering sentences that in context give

interpreters good reason to infer that meaning (which may be the literal meaning). The nature of the context in which the legislature acts is thus central to understanding how the legislature conveys its lawmaking decisions and how interpreters should infer them. Marmor argues that the ‘the context is not rich enough to make it obvious and transparent that the legislature could not have meant/asserted what it said’.18 Manning argues to similar effect that ‘semantic context’ has priority over ‘policy context’,19 such that the ‘metric’ for sound interpretation is ‘the understanding of a hypothetical reasonable person conversant with applicable social and linguistic conventions’, rather than a

‘hypothetical reasonable policymaker’.20 Each argument turns on an unsound account of the legislature qua agent, accounts that I criticized in chapter 8, section IV in the course of outlining my own theory of legislative action. The well-formed legislature is a single, rational agent, which there is good reason to presume acts for good reasons rather than for any reason or no reason (as Manning’s account entails). I now argue that the context in which this agent acts is not thin or opaque, but rich and complex. Like other language users, the legislature exploits the context to frame how interpreters infer what it means.

Viscount Simmonds says that the context of a statute includes ‘its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy’.21 Likewise, Bennion says that ‘the context of an

enactment comprises, in addition to the other provisions of the Act containing it, the legislative history of that Act, the provisions of other Acts in pari materia, and all facts constituting or

concerning the subject-matter of the Act’.22 The final phrase is an overstatement: the relevant facts must at least have been known to the legislature. Indeed, the context of legislation consists in what is known and of concern to legislature and community, for it is this that bears on what the legislature is likely to intend to convey in uttering the text. The legislature partly responds to context when selecting the semantic content it is to utter, intending thereby to make plain to citizens and officials some

meaning-content, and hence its choice about how the law is to change. However, the legislature also frames the context, because it adopts a complex scheme, which it intends to be read as a whole. The various parts of the statute inform and constrain how each is to be read.

Legislators craft the statutory text intending it to be interpreted as a presumptively coherent whole.23 Interpreters will infer what the legislature intends to mean in this particular provision by reference to what they infer the legislature intended to convey in the other provisions of the statute. One reads the set of provisions to avoid surplusage, to make sense of the legislature’s decision to use the same or some different word or phrase, and to resolve apparent repugnance, inferring the

legislature’s intended meaning in light of its decision to adopt this set of provisions as part of one scheme. Interpreters also rightly take it for granted that the legislature does not intend to impose contradictory duties or otherwise to introduce incoherence into the body of law. This holds too in relation to (apparent) conflicts between statutes enacted at different times, where interpreters resolve inconsistency between earlier and later statutes by inferring that the legislature has repealed (in a specialized sense of that term) the earlier statute by implication, but also presume that an earlier, relatively narrow proposition is intended to be preserved when or if inconsistent with a later, general proposition. Likewise, the legislature’s decision to enable some mode of action may by implication proscribe alternative modes.24 For example, in making statutory provision for some action, the

legislature is taken to imply that the prerogative power to carry out that action and to make provisions relating to its subject matter is abridged.25

The legislature acts for reasons and the facts pertaining to the subject matter of the Act are relevant to what the legislature is likely to intend to mean because the legislature acts to convey its decision in this field. Therefore, what the legislature is likely to intend to mean is heavily informed by the nature of the mischief that it acts to address and the facts about this mischief which are known at the time of enactment. The interpreters infer what the legislature was likely to have meant by reference to what it would have been rational for it to decide, especially given the general scheme that its other choices disclose. That is, the interpreter reflects on the relevant problem, aiming to understand the legislative response to it, which means inferring the complex means-end packages on which the legislature acts.

For similar reasons, the interpreter ‘seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament’.26 The presumption that the legislature does not intend absurd or anomalous consequences, while sound, is of course consistent with the legislature making mistakes or acting on reasons that interpreters find unpersuasive. Hence, the

presumption informs inference about the legislature’s reasoning and likely intended meaning, but does not warrant departing from settled judgment about what it is plausible to think the legislature chose. Importantly, as with language use in general, the context of legislation does not produce the meaning of the statutory text. Rather, the context in which the legislature acts is highly relevant to inferring the meaning the legislature acted to convey. It follows that the context of legislation is what is known and salient at the time of enactment, for it is this which is relevant to inferring what the legislature was likely to intend. Foreseeable consequences are relevant (and wholly unforeseen, exceptional

consequences may be relevant in any event on the grounds of equity: see section VI below), but only because they inform inference about likely intention.

The context, Bennion says, includes the legislative history of the Act, by which he means the record of the proceedings within the legislature as well as the pre-enactment history of the relevant field of law. The use of Hansard (or equivalent) is a recent development in the common law world (outside the United States) and I consider it further in section V of this chapter. However, whatever the relevance of Hansard, the state of the law prior to the legislature’s act has always been of central importance in understanding how the legislature has acted now to change the law. The interpreter cannot soundly infer what the legislature intended to convey ‘unless he or she knows the previous state of the law, the defects found to exist in that law, and the facts that caused the legislator to pass the Act in question’.27 The legislature often uses words that have particular meanings under the pre- enactment law and interpreters ask whether the legislature intended to use the relevant word to convey that meaning.28

Acts in pari materia constitute a common scheme: addressing a particular subject matter along the same lines, having identical titles or a collective title, or being deemed by the legislature to be

construed as one.29 The provisions of such Acts constitute part of the context because they are salient to legislature and interpreter, and are relevant to what a rational legislator would intend to convey. It is true also that the law in general forms the context—the legislature acts in response to and takes advantage of the complex set of legal propositions and principles that forms the law. The point of the legislative act is to change this complex set of propositions: to infer which changes the legislature intends one has to think carefully, as the legislature is likely to have, about the detail of the existing law. This argument holds for all propositions relevant to the subject matter of the legislative act, for it is this set that the legislature intends to modify, to some extent and for some reasons. The argument also holds in relation to legal principles that form part of the constitutional order, for such principles may loom large in deliberation or their continued force may be taken for granted. Hence, in England

one presumes that statutes do not bind the Crown, that clear and explicit authorization is required before the Crown is permitted to levy charges for services, that there is exclusive parliamentary control over the supply of funds to the Crown, that (per the Carltona doctrine30) statutory

authorization of a minister or Secretary of State extends to his officials, that commencement of primary legislation is to be achieved by statutory instrument rather than mere administrative action, and that individuals have a right to know of a decision adverse to their interests before it takes effect against them.31

The presumptions of statutory interpretation are important. However, contra Waldron and Raz among others, the ‘canons of construction’ are not rules that stipulate how a statute is to be

interpreted; they do not stand to legal meaning and effect as semantic rules stand to semantic content. Llewellyn famously argued that the canons were contradictory rules and that they could rationalize but never justify how a court interprets a statute.32 The better view is that the canons are presumptions about what the legislature is likely to intend.33 The presumptions are defeasible, but they helpfully formalize part of what the interpreter takes into account in inferring what the legislature means. This formalization is valuable because it is salient and helps frame how the legislature forms and conveys its intention.

The legislature may safely leave various points unsaid, say that the offence its enactment creates or regulates is limited to acts within the jurisdiction, does not apply retrospectively and does not oust the standard criminal law defences.34 These points, which bear on the scope and content of the

propositions the legislature introduces, will be taken for granted such that the legislature’s act will not disturb them unless it is possible to infer that it intends as much or that this is a necessary

implication of the meaning it intends to convey. Other presumptions point to some value or interest that it is likely the legislature took into account, such as the presumptions that the legislature intends to act consistently with international law and intends not to interfere with common law rights. The

canons are pointers towards legislative intent. They jointly constitute an interpretive regime, which varies by jurisdiction, but none purports to or is capable of replacing inference about what the legislature intends in this particular legislative act. No legal system adopts a set of rules that settles what any legislative act means, for no set could respond to the range and complexity of legislative acts. The legislature may exploit the canons, like Grice’s maxims, or make clear its departure from one by manifesting (more or less explicitly) its intention to that effect.

The legislature may explicitly cancel implications to which its choice of language in context may otherwise seem to give rise.35 The craft of legislating is to formulate a statutory text that makes clear —in light of the previous state of the law, relevant general principles, the content of the rest of the statutory scheme and the law at large, and the ends that the statute seeks to realize—what the legislature intends to convey. The overwhelming importance of statutory context, as well as the

capacity of legislators to frame part of that context, confirms that one does not legislate just by stating explicitly what the content of the law shall be. Rather one makes clear how precisely one intends to change the law.