The provisions of Part 5 of the Building Safety Act 2022 (BSA) seek to ‘address the problem of historical building safety defects’ that has emerged following the Grenfell Tower fire (URS Corporation Ltd v BDW Trading Ltd, [86]). Express statutory wording makes clear that the change to the limitation period under the Defective Premises Act 1972 is retrospective (see s 135(3)) but there is no express wording about retrospectivity in relation to other provisions. As discussed in Graham’s post here, the Court of Appeal in held in Adriatic Land 5 Limited v Long Leaseholders at Hippersley Point and Triathlon Homes LLP v Stratford Village Development Partnership that para 9 of Schedule 8 (Adriatic Land) and section 124 (Triathlon) had retrospective effect. This post considers the role of external aids in reaching this interpretation.
Explanatory Notes
In Adriatic Land both Newey and Nugee LJJ note that the general approach to statutory construction is well settled: to identify the meaning borne by the words in question in the particular context, and the purpose and scheme of the legislation provides the ‘frame of orientation’ for doing so (Lord Sales in R (PACCAR Inc) v Competition Appeal Tribunal, [41]). Explanatory notes (ENs) might ‘cast light on the meaning of particular statutory provisions’ because ‘the context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute’. However, the words of the statute should always be the primary source of its meaning, with explanatory notes playing only a ‘secondary role’ (Lord Hodge in R (O) v Secretary of State for the Home Department, [30]). In PACCAR Ltd, Lord Sales suggested that it is legitimate to refer to ENs ‘which accompanied a Bill in its passage through Parliament’ to ‘inform the assessment of the overall purpose of the legislation and … provide assistance to resolve any specific ambiguity’, but again noted that they will play a secondary role overall (PACCAR Inc, Lord Sales, [42]).In Adriatic Land and Triathlon counsel for the parties made frequent reference to the ENs accompanying the BSA. This is unsurprising. Indeed, in URS Corporation Ltd v BDW Trading Ltd, Lords Hamblen and Burrows refer both to the written submissions of the Secretary of State [para 104] and the ENs [105] to explain the ‘purpose and policy’ of the BSA which then informed their construction of the relevant provisions. What was not picked up in URS,however, was the late publication of these ENs.
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The Building Safety Bill was first introduced to Parliament, with ENs, in July 2021 but it was the amendments in early 2022 that introduced remediation contribution orders (at issue in Triathlon) and Schedule 8 (at issue in Adriatic Land), and ENs accompanying Lords’ amendments were published in April 2022. The ENs accompanying the Act that received Royal Assent (and referred to in URS) were not published until sometime later in 2022 – either July (according to the government witness in the Court of Appeal cases), or August (according to counsel for Adriatic). Counsel for Adriatic argued that it was only the post-Act ENs that evinced the intention that Schedule 8 would operate retrospectively and that no weight should be placed on them. Newey LJ devoted several paragraphs [65-72] to a discussion of the weight to be attached to the ENs. He concludes that although notes published only after a statute is passed ‘may be of persuasive authority’ they are comparable to ‘academic writings’ and do not enjoy any particular legal status, and, adopting the views of Bennion, the weight to be given to them should depend on the cogency of any reasoning contained in them. In Triathlon there is less discussion of the ENs but Nugee LJ agrees that ENs published after the passage of the Bill are of limited assistance, [150].
It is, on the one hand, easy to sympathise with this position. As Newey LJ put it in Adriatic, ‘where, … explanatory notes in respect of a statute did not exist when it was being passed, there is less reason to see them as a guide to Parliament’s intentions,’ [67]. Post-Act ENs reflect the viewpoint of the government as to how a statutory provision ought to operate; they do not reflect Parliament’s intention directly.
On the other hand, the downplaying of ENs produced after a statute gets Royal Assent is at odds with the thrust of Lord Burrow’s extra-judicial views (see Some Issues on Statutory Interpretation (6)). He is dismissive of drawing a distinction between ENs accompanying the Bill through Parliament, and those produced after the Act (6). Indeed, he says there is a ‘a strong argument that the greater weight ought to be placed on the ENs accompanying the Act’ as these explain the final form, are drawn up to ‘explain to the public what the Act means’, and ‘normally drawn up by those civil servants who have been intimately connected with the passing of the Act and have been concerned with the formulation of the relevant policy and the instructing of Parliamentary counsel’. It may be, however, that the ENs published after the BSA fall into an exceptional category. A major policy shift in Part 5 of the BSA occurred at a late stage; this included the introduction of the remediation contribution order and the provisions protecting leaseholders from costs. Although these changes were flagged by the April 2022 ENs, the post-Act notes are much more expansive. They do, perhaps, provide an example of what Lord Burrows suggests would be a ‘very rare’ instance of the post-Act ENs being quite different from the earlier ones, and this might be a reason to adopt a more cautionary approach to the weight attached to them.
Witness statements
In Adriatic Land the Court of Appeal had before it a lengthy witness statement provided by Mr Murphy as Head of Enforcement Strategy at the MHCLG. The statement explains the context to the building safety crisis, the purpose of Schedule 8 to the BSA (the leaseholder protection provisions) and the government’s thinking behind the development of Schedule 8, as well as addressing proportionality. This was provided as evidence in relation to the argument based on compatibility with A1P1 ECHR. It is generally well-settled that such statements can be provided as admissible evidence in the human rights context, especially in relation to whether a given measure pursues a legitimate aim or whether measures adopted had a rational connection with that aim.
Although there was no substantial opposition raised by counsel to it also being used in relation to the broader issues of statutory construction, Nugee LJ did express some reservations about admitting government witness statements which set out the legislative background and history, suggesting that in a future case the appropriateness of the practice might require further argument, [150]. External aids such as Law Commission reports, reports of Royal Commissions, advisory committees, and Government White Papers are admissible because they are available to the public and their advisers. Sales J (as he then was) made this point in the 2010 case of R (PSCU) v Civil Service in relation to private notes on clauses: ‘notes on clauses … are private documents not available to the public at large... an Act of Parliament creates law applicable to all citizens… it is fundamental that all materials which are relevant to the proper interpretation of such an instrument should be available to any person who wishes to inform himself about the meaning of that law’, [55]. Lord Sales returned to this topic in a recent lecture, arguing that ‘it is only legitimate for the courts to refer to aids to interpretation which are in the public domain and are accessible to ordinary citizens’ (Statutory Interpretation in Theory and Practice, 15).
Whilst Lord Sales was discussing private notes in particular in R (PSCU) v Civil Service, the same may be said about expert evidence, providing an account of the policy behind a bill at the time it was being passed. In URS Corporation Ltd v BDW Trading Ltd Lords Hamblen and Burrows, when explaining the policy goals of the BSA, also referred to the Secretary of State’s written submissions [83, 87, 104, 115]. Although helpful for construing the context behind the legislation, neither expert evidence nor written submissions form publicly-accessible documents in the sense Lord Sales styles them.
In the particular case, however, the majority of what is in the statement was already publicly available and common knowledge, and was already considered by the Court of Appeal for the purpose of the ECHR argument, and therefore the Court was content to have regard to it.
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