It is commonly believed that the rule prohibiting reliance on legislative history as an aid to statutory interpretation was firmly in place in the United Kingdom, and indeed throughout the English-speaking common law jurisdictions of the world, long before the turn of the 20th century; and that the rule was set aside in the case of Pepper v Hart in 1992. However, an examination of the relevant cases and the canonical textbooks by Maxwell and Craies reveal that the rule was subject to a significant amount of disagreement at the turn of the 20th century, particularly with respect to the admissibility of commissioners’ reports to uncover the mischief of a statutory provision. This disagreement would not be completely resolved until the 1960s. With respect to other types of legislative history, there were prominent exceptional cases over the course of the 20th century; and there was a gradual acceptance of more types of legislative history as aids to statutory interpretation during the decades leading up to Pepper v Hart. Thus, the simple narrative description that the rule was firmly in place until it was set aside in 1992 must give way to a more complex narrative of disagreement and gradual decline. Meanwhile, as the rule lost traction in the United Kingdom over the course of the 20th century, a growing accumulation of justifications for the rule has been assembled, and an ongoing debate has been taking place about the efficacy of reliance on legislative history. Based upon the different trajectories followed in other English-speaking common law jurisdictions, and particularly the United States, the decline of the rule was not inevitable. It follows that the current state of affairs is likely to change over time.
Millar v Taylor is an iconic case for statutory interpretation. It has long been regarded as the case in which the rule prohibiting reliance on legislative history was first put forward by Mr. Justice Willes in 1769. However, a close reading of the judgment reveals an uncomfortable fit between the rule that the case purports to stand for and the judicial reasoning within it. Meanwhile, the case was cited frequently throughout the 19th century, but never in support of the exclusionary rule. During that time period, the judiciary was aware of the fact that Mr. Justice Willes’ famous statement was contradicted by reasoning in the case. It was in the 20th century that scholars began citing Millar v Taylor in support of the exclusionary rule—a time when the quantity of published cases and secondary literature had increased significantly, and cases like Millar v Taylor were being cited without necessarily being read. This stands as a cautionary tale: one ought to quote with care, particularly when citing older cases.
While the late Justice Antonin Scalia is best known for his colourful, intemperate dissents, not everyone is aware of his broader significance as a jurist and legal scholar. As well as being successful at the bar and bench, Justice Scalia adopted an approach to statutory and constitutional interpretation called ‘textualism’ which proved highly influential, and which inspired an enormous quantity of scholarly writing. He claimed that his approach to adjudication was value-neutral; however, his well-known connections to the Republican Party made him a target for accusations of political bias. His concurring opinions in several landmark Supreme Court judgments added fuel to the controversy by providing outcomes which advanced policies generally regarded as favourable to those on the right of the political spectrum. The controversy tends to overshadow the enormous impact that Scalia’s jurisprudence has had on the legal community. He inspired the development of legal thought on both sides of the political divide, and he drew scholars from a variety of academic disciplines into the dialogue. In light of the enormous body of literature he inspired, and his political, legal and social impact, Justice Scalia deserves to be regarded as one of the great common law jurists of the Anglo-American tradition, alongside historical figures such as Denning and Pound.
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