Supreme Court of Ireland Decisions

1. In this case the matter for decision is whether the method of calculation of the charge payable under s. 2 of the Health (Amendment) Act, 1986, namely, the calculation of charge by the division of annual hospital costs by the number of occupied hospital bed days during the same year, as used by the Eastern Health Board (now known as the Eastern Regional Health Authority) hereinafter referred to as the claimant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986. In addition the claimant has asked that regard be had to parliamentary materials when interpreting statutes. The second-named respondent in this appeal, F.B.D. Insurance plc., is hereinafter referred to as the insurer.

2. Derek Crilly was severely injured in a road traffic accident. He was a patient in a number of hospitals and underwent extensive medical treatment. He sued T. & J. Farrington Limited and John O’Connor . In a reserved judgment on 26th August, 1992 Derek Crilly was awarded £1,667,078.20. As his injuries resulted from a road traffic accident the Act of 1986 applied. The claimant claimed a charge. I was the trial judge in the High Court in the said original action, as was noted in court at the commencement of this appeal. The parties had no objection to my presiding on the adjudication of the issues now before this court. In the said reserved judgment of 26th August, 1992 I stated:

3. The issue in this case between the claimant and the insurer is as to the method of charging of the Beaumont Hospital bill. In fact the bill has been paid and in this case in the High Court [2002] 1 I.L.R.M. 548 Geoghegan J. questioned whether the subject was moot. However, in view of the fact that the declaratory relief sought is in relation to an issue which arises every day of the week between the claimant and the insurer the learned trial judge acceded to the request of the parties that the matter proceed.

4. The matter in issue requires the construction of the Health (Amendment) Act, 1986. The long

5. The Health Act, 1970 provides:

6. In the High Court [2000] 1 ILRM 548 Geoghegan J. determined at p. 551 of the report:

7. There had been previous decisions on this issue in the High Court in other cases, to which the

8. Applying the traditional canons of construction the learned High Court judge held that s. 2(1) of the Act of 1986 cannot be interpreted as requiring the health board to make a charge similar to the charge under s. 55 of the Health Act, 1970 as the said s. 55 provides for a fixed charge, i.e. a charge to be fixed from time to time by the Minister for Health, and that there was no reference in s. 2(1) of the Act of 1986 to such a fixed charge.

9. Further, the learned trial judge held:

10. After analysis, he held as set out at pp. 555-7 of the report:

11. On the second issue, the consideration of parliamentary debates, the learned High Court judge quoted from Costello P. in People (D.P.P.) v. McDonagh [1996] 1 I.R. 565; [1996]

12. The claimant appealed. The grounds of the said appeal are that the learned High Court judge erred in fact and law:

13. The insurer cross appealed on the grounds that the learned trial judge erred in law and/or fact:

14. Paul Gallagher, S.C., counsel for the claimant, submitted that the High Court judge held:

15. The claimants agreed with the submission at (i), (ii) and (v) above and submitted that (iii), (iv) and (vi) were wrong in fact, in law and internally inconsistent.

16. It was submitted that there is a mandatory obligation on the health board to impose a charge. The manner in which the charge is to be calculated is not set out in the Act. The charge to be imposed may be in respect of future or ongoing services which are necessarily uncertain and can only be determined as a matter of probability. In fact while there should be a relationship between the charge and the service it is not required to be precise.

17. It was submitted that the learned trial judge was correct when he held that the charge must be reasonable and moreover, reasonable vis-à-vis both parties. It was submitted that the claimant’s practice of seeking to recoup the average daily cost (A.D.C.) is reasonable as regards its own conduct and as regards the health board and in-patient/recipient of services.

18. It was contented that a scheme permitting “some” averaging would be necessarily arbitrary and less transparent than the existing practice.

19. It was submitted that as regards a method of calculation whereby the charge would be in respect of actual services received by a patient but permitting some averaging necessary to obtain a reasonable price, there was no such scheme in Beaumont Hospital or in any other hospital in the country. The claimant suggested that the cost of establishing and implementing such a scheme for the less than 1% of patients who are road traffic accident victims would be disproportionate and might even exceed any saving which might otherwise accrue to patients themselves.

20. It was further submitted that the evidence in this case was that of the claimant’s concerning the A.D.C. scheme. The evidence adduced was that it was not feasible to price on an individual basis and that averaging, in particular A.D.C., was a reasonable method of charge. The uncontradicted evidence before the court was that the charge made by the complainant was reasonable and appropriate. Further that the A.D.C. had the advantage of transparency. The method was particularly appropriate as insurers are by definition averagers of cost and risk.

21. The claimant submitted that the conclusion that the charge is reasonable is one which could be reached without recourse to parliamentary materials. However, the claimant adopted the conclusions and reasoning of the learned trial judge as regards the admissibility of parliamentary material, i.e. Dáil and Seanad debates. It was submitted, however, that the treatment of the Minister’s statement to the Dáil by the learned trial judge was not consistent with the learned trial judge’s own enunciation of how such parliamentary material should be treated.

22. Mr. Patrick Connolly, S.C., counsel on behalf of the insurers, submitted that the High Court judgment, when perused as a whole, found that the method of calculation advanced by the claimant, i.e. A.D.C., was ultra vires the Act of 1986. It was submitted that the learned trial judge was correct in so holding. It was submitted that it is clear from the Act that the charge to be levied is to be in respect of the services actually received by the individual patient. As regards the proposition that individualisation of charges is either very difficult or very expensive, that was nihil ad rem so far as the issue of intra or ultra vires was concerned.

23. The insurer further submitted that the determination by the learned trial judge that the charge to be imposed under the Act should be a reasonable one is correct and that the trial judge was correct in holding that the charge sought to be imposed by the claimant was not reasonable.

24. With regard to the expert evidence, it was argued on behalf of the insurer that the evidence tendered on behalf of the claimant was and is irrelevant to the legal issues at the heart of the case, such as vires and reasonableness. However, the insurer advanced the argument that as “charge” is not defined in the Act of 1986 and the Act provides that it is to be construed with the other acts which constitute the health code, assistance as to the nature of the charge is provided by reference to s. 55 of the Health Act, 1970. Indeed, the insurer submitted that the word “charge” in s. 2 ought to receive a similar meaning to that given to the charge in

25. As regards the admissibility of parliamentary debates counsel analysed and distinguished case law. It was submitted as a general proposition that whatever be the modern considerations in relation to such concepts as “purposive interpretations” and the looking at external materials, the primary and dominant canon of construction still remains that the meaning of legislation is to be gleaned in the first instance by the language taken as a whole of the act (and sister acts) and that recourse to external material only arises in certain limited circumstances at most. It was submitted that insofar as it is stated in The People v McDonagh [1996] 1 I.R. 565 that external material could be looked at even when there was no ambiguity in the Act, such a proposition was obiter and extreme, and of itself, not well founded

26. The claimant sought a declaration that the method of calculation of the charge payable under

27. The issue is whether the method of calculation of the charge payable under s. 2 of the Health (Amendment) Act, 1986 by the claimant is reasonable and intra vires the Act. Under s. 2 of the Act of 1986 where injury is caused to a person by the negligent use of a motor vehicle in a public place and in-patient or out-patient services have been, are being, or will be provided by or on behalf of a health board in respect of the injury, and the injured person, or his personal representatives or dependants, have received or are entitled to receive, damages or compensation in respect of that negligence from the person liable to pay such damages arising therefrom, the health board shall, notwithstanding anything in the Health Acts 1947 to 1985, make a charge upon the person who received or is entitled to receive such damages or compensation in respect of the in-patient or out-patient services.

28. The issue arises under a public statute. It is a matter of public law. I am satisfied that the correct basis for the determination of the issue is to be found in public law. The Oireachtas has left the type of charge to be determined, in this case by the complainant, in accordance with the principles and policies of the Act. The applicable rule of law was stated by Henchy J. In Cassidy v. Minister for Industry [1978] I.R. 297 at pages 310-311 where he stated:

29. That test, as applied by Blayney J. in McGabhann v. Law Society [1989] I.L.R.M. 854, is applicable. In that case the learned judge, in considering the question as to whether the Law Society’s compensation rules were unreasonable, stated at p. 862 of the report:

30. The test is thus to see if the charge is reasonable in the above sense. It is a matter of construction.

31. I am satisfied that the learned trial judge was correct in holding that s. 2(1) of the Act of 1986 cannot be interpreted as requiring a health board to make a charge similar to a charge under

32. The learned trial judge was correct in determining that the charge must be a reasonable one. I am satisfied that the power must be exercised reasonably. It must not be arbitrary, unjust or partial.

33. The Act of 1986 does not state expressly what charge or system of charge is to be used under s. 2. In this it is different from the scheme in s. 55 of the Act of 1970. Thus s. 2 falls to be construed. The section has been set out in full previously in this judgment. Observations have been made as to its nature. It falls to be construed under the traditional canons of construction. The section sets out circumstances:

34. As previously noted, the claimant is mandated to make a charge. The Act refers to “a charge”. The Act does not refer to “the charge” for the actual cost of the services. In fact, in certain circumstances, for example, if the damages include future services, the charge could not be determined precisely.

35. There was evidence of the difficulties in establishing the actual cost of the services rendered. While this does not settle the matter it is a relevant factor.

36. There was ample factual evidence as to the nature of the charge. The evidence was that the claimant seeks to recoup the “Average Daily Cost” (A.D.C.). The A.D.C. is calculated by taking the hospital’s total annual expenditure and dividing this by the number of bed days occupied in the year. It appears that the charge made by a hospital in a given year usually lags behind the actual cost in that year because it is calculated on the basis of the preceding year’s audited accounts. The A.D.C. excludes capital and capital appreciation costs. This is a transparent system of establishing the charge. It is a system of averaging which is reasonable and consistent. Consequently it is not arbitrary, partial or unjust. No evidence was given as to any other system.

37. Reference was made to English legislation. This has not proved helpful. At issue is the specific interpretation of an Irish act - the establishment of an Irish scheme.

38. I am satisfied that whereas the learned trial judge was correct in determining that the charge must be reasonable and correct in applying the traditional canons of construction, he fell into error in determining that the charge is a charge in respect of the actual in-patient or out-patient services which the victim received. The section does not so state expressly. It is a statutory section enabling a health board impose “a charge”. The section requires “a charge” to be made in respect of the services which the person has received or is entitled to receive. The Act does not expressly require the charge to cover precisely the services given. Discretion is left to the claimant to establish the charge.

39. The section relates to victims of road traffic accidents. The wording echoes legislation requiring compulsory insurance. It refers to such injured persons as have received in-patient or out-patient services and as have received or will receive damages or compensation. In referring to the services rendered or to be rendered and the charge to be made the section does not tie one with the other. Thus the statute does not expressly provide for individualised charges. Nor, in an area where averaging is the norm, would it be reasonable to so imply. Indeed, the learned trial judge accepted that there would in fact be a degree of averaging.

40. On the clear words of the statute “a charge” is mandated. This must be reasonable. On the evidence A.D.C. is reasonable. This is a matter which was uncontradicted and so must weigh in the analysis of the case, for what is reasonable is a matter of law and fact. The facts are based on the evidence. The evidence was that the A.D.C. was reasonable and practical. Section 2(1) provides a distinct charging system relating to victims of road traffic accidents. Road traffic accident victims are 0.78% of users of hospital services. In interpreting the section the fact that the section applies to this separate group is relevant. The reality that individualisation of charges would be very expensive is a factor, although not conclusive, in analysing the factual aspects of the issue.

41. I am satisfied that the A.D.C. falls within the range of “reasonable”. It is not arbitrary, partial or unjust. It is transparent. It is calculated on the general average and not on the more intensive use of hospital facilities by road traffic accident victims. It is charged by the year in arrears. The capital cost is not included. Of course, it is not the only scheme possible under the section. However, the A.D.C. is within the scope of “reasonable”.

42. To summarise my conclusions on this aspect of the case, I am satisfied that the charge must be reasonable. Applying the ordinary rules of construction I am satisfied that the words of the section are clear and unambiguous. The charge under s. 2 of the Act of 1986 is not the charge envisaged under s. 55 of the Health Act, 1970. Further, a charge need not be the precise charge for the actual services rendered. An average is a reasonable basis for a charge. The A.D.C. is reasonable and intra vires s. 2(1) of the Act of 1986. Consequently, I would allow the appeal and dismiss the cross appeal.

43. As a result of the conclusion reached above it is not necessary to proceed to determine the admissibility in evidence of parliamentary debates. However, I would strike a note of caution as to the admissibility in court of ministerial statements in parliamentary debates.

44. The learned trial judge pointed out that it was not necessary for him to address this issue. Nevertheless, he then went on and stated:

45. Both the above matters (the said legislative history and the fact that its use had long been established) indicate an approach consistent with the current law. It has indeed long been established that such legislative history of a section could be referred to. This is done frequently.

46. For well established reasons, including those I have just stated, the speeches made by ministers in the Dáil and Seanad when introducing legislation have not been admissible in court when the court is construing statutes. I am not persuaded that good reason has been indicated in this case for changing or developing the common law in this jurisdiction.

47. In this case the Act is clear, there is no ambiguity and the section in issue has been construed in accordance with the traditional canons of construction. McDonagh decided that even if an act is not ambiguous the legislative history, that is the legislative antecedents, may be considered by a court. I agreed then and I agree now with Costello P.’s judgment that such an approach should not be excluded. A court has a discretion to consider such legislative history.

48. In this case such an approach would not lead to any different construction of the relevant legislation. Nor would I have reached a different conclusion if the Minister’s statement had been admissible.

49. In the High Court the learned trial judge looked at what the then Minister for Health in 1986 said to the Dáil when piloting through the bill which became the 1986 Act. The learned trial judge cited the Minister as stating:

50. Of that statement the learned trial judge held at p. 559 et seq . of the report:

51. If I were satisfied that in general the statements of ministers in parliamentary debates should be admissible in evidence (which, as yet, I am not), then, consequent on the doctrine of the separation of powers and the division of the functions of the three organs of government and the respect which one organ of government holds for another, such statement should carry significant, heavy weight. Where a minister specifically stated what a section meant I would consider that it would be difficult to determine that such admissible evidence should not be followed. All of that being so, if the statement of the Minister were admissible in this case, I would have been inclined to decide that A.D.C. is a reasonable interpretation of s. 2 of the Act of 1986 and intra vires the Act. However, this approach does not arise.

52. For the reasons stated in this judgment I would allow the appeal and set aside the order of the High Court. I would make an order in the form of the declaration sought that:

53. The substantive issue in this case concerns the interpretation of Section 2 of the Health (Amendment) Act 1986 and in particular the manner in which the Eastern Health Board, now known as the Eastern Regional Health Authority, calculated the charges which it is entitled, by virtue of that section, to impose on a person to whom in-patient or out-patient services have been provided in respect of injuries received in a road traffic accident and where the person injured is entitled to recover damages from a negligent wrongdoer who caused or contributed to the said accident.

54. A subsidiary but important issue also arises concerning the use of a ministerial statement in Dáil Eireann as an aid to the interpretation of the Act.

55. Mr Crilly received serious injuries in a road traffic accident and successfully sued

56. Mrs Justice Denham in her judgment has set out all the relevant facts and arguments of the parties and because I have come to the same conclusion as she does in her judgment concerning the interpretation to be given to the Act it is not necessary for me to refer to them except in so far as they are relevant to the issue concerning the admission of statements made by a Minister in the Oireachtas as an aid to the interpretation of Section 2 of the Act.

57. The basic submission of the Appellants, the Health Board, is that the charges which it may make pursuant to Section 2 of the 1986 Act may be properly calculated according to, what they call, the Average Daily cost. The Average Daily cost is calculated by taking the hospital’s total annual expenditure and dividing this by the number of bed days occupied in the year. It excludes capital and capital depreciation costs. The Appellants contend that this method of calculating the charges to be made is a proper and reasonable exercise of their powers under Section 2 of the 1986 Act properly construed.

58. In the High Court the Appellant sought to rely on a ministerial statement made in Dáil Éireann during the passage of the Bill as support for the interpretation for which they contended. It was also part of the case made by the Appellants before this Court that Section 2 of the Act should be interpreted in the light of a ministerial statement in Dáil Éireann that the charge contemplated under Section 2 “ would normally be the average daily cost per bed in the hospital concerned. ”

59. The learned High Court judge ruled that Counsel for the Appellants was entitled to introduce the ministerial statement for the purpose of persuading the court to a particular view as to the interpretation of the statute. As I understand the learned High Court’s judgment such a ministerial statement is admissible for such purposes even where the statutory provision in question is unambiguous. Having done so the learned High Court judge found the ministerial statement of assistance in the interpretation of the Section “ but only by implication ” namely that, contrary to one of the arguments put forward by the Respondents, it was never intended that charges provided by in Section 55 of the Health Act 1970 should apply to a case of this nature. He did go on to observe that he had already formed that view independently of considering the ministerial statement.
In this appeal the Appellants have relied on the learned High Court Judge’s ruling and repeated their submissions concerning the admissibility of ministerial statements as an aid to the construction of statutes. The Respondents, for their part, object to the admissibility of parliamentary debates for such a purpose on the grounds, inter alia , that they are excluded by a long standing common law rule to that effect and because to do so would infringe the separation of powers between the Legislature and the Courts. In these circumstances this is an issue which I consider needs to be addressed in this appeal and the one with which this judgment is concerned.

60. The interpretation of legal texts such as statutes has presented problems from the earliest times to the present day. Plato urges that laws be interpreted according to their spirit rather than literally. Voltaire expressed the view that to interpret the law is to corrupt it. These two anecdotes simply highlight the historical tension which still exists between the search for the “ true intent ” of a statute and legal certainty. That such tensions should persist to the present day is not surprising when one considers that first, there is the law; then there is interpretation. Then interpretation is the law. This simplified reference to the judicial process emphasises that when courts apply a statute the interpretation which they give it has ultimate authority. Voltaire’s misgivings would not be altogether misplaced in a judicial environment where rules for interpretation of statutes were lax, subjective or even non-existent. Then there would be a real likelihood that in some cases the Courts would usurp the functions of the legislature.

61. Assuming that a statute is not drafted in haste, which is by no means always the case, and the parliamentary drafter has carefully fashioned and finessed its text, the fact remains that words are often an imprecise tool, however well wielded. Added to this is the impossibility of always foreseeing every situation or combination of circumstances to which a statute may have to be applied. As Bennion in the introduction to his third edition (p. 3) on Statutory Interpretation observed “ The natural and reasonable desire that statutes should be easily understood is doomed to disappointment. Thwarted, it shifts to an equally natural and reasonable desire for efficient tools of interpretation. If statutes must be obscure, let us at least have simple devices to elucidate them. A golden rule would be best, to unlock all mysteries. Alas, ... there is no golden rule. Nor is there a mischief rule or a literal rule, or another cure-all rule of thumb. Instead there are a 1001 interpretative “criteria”. Fortunately, not all of those present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance. That is the nearest we can get to a golden rule, and it is not very near ”.

62. With a view to addressing the difficulties inherent in statutory construction the common law in the course of its evolution over a long period of time has identified an extensive range of criteria, usually referred to as canons of construction, referred to above by Bennion, as efficient objective and neutral aids to the interpretation of statutes. There are also presumptions concerning the interpretation of statutes such as the presumption of constitutionality, that an act is prospective, the strict construction of penal statutes and presumption against absurdity. They are, as I have mentioned, intended as efficient and neutral aids to the interpretation of statutes and are not some sort of standard formulae automatically shaping the result of an interpretative issue. The use of canons or principles of construction, or any one or combination of them in a given case depends on a variety of factors and their interplay - the complexity or clarity of the text in issue, whether applicable precedents exist, whether there are fundamental principles in issue or constitutional considerations - one could go on. The point of departure for the Court is always the actual text of the statute to be interpreted and it is a matter of judicial appreciation, in the light of submissions from Counsel, which canons or method of interpretation are appropriate to the nature of the problem which presents itself in the particular case.

63. Among these well established canons and rules of construction stands the well established rule excluding recourse to parliamentary debates as a means of interpreting statutes and which has been part of the common law since prior to 1769. Craies at page 128 in his seventh edition on Statute Law describes this rule as follows, “ It is not permissible in discussing the meaning of an obscure enactment, to refer to ‘the parliamentary history’ of a statute, in the sense of the debates which took place in parliament when the statue was under consideration. As was said by Willes J in Millar -v- Taylor [1769] 4 BURR. 2303 ‘The sense and meaning of an act of parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the house where it took its rise. That history is not known to the other house or to the sovereign.’ ”

64. The judicial aids to the construction of statutes, including the exclusionary rule to which I have just referred, were formulated as a matter of judicial policy in the light of experience and with a view to enabling the Courts to ascertain, as far as possible, in a useful, efficient and objective manner the true meaning of the statute in issue. They are not fundamental principles. They are a methodology of approach to the interpretation of statutes. They may be changed or adapted. In very recent times the classic exclusionary rule concerning parliamentary debates has not been applied in the traditional manner in a certain number of cases within this jurisdiction (and I will refer to these later) and the question as to the application of that rule has been once again raised an argument in this case. There is no rule of law which prohibits a review of a rule of construction. The question is whether it is now appropriate to relax or set aside that rule. It is not simply a question of whether the rule is set in stone or is too rigid or ought to be more flexible. It is more a question whether as a matter of judicial policy recourse to debates in the Houses of the Oireachtas should be had generally or in certain circumstances as a useful, efficient and neutral aid to the interpretation of Acts enacted by the Oireachtas.

65. This is a question which has to be addressed in the context of our constitutional framework, the role of the Courts in the interpretation of statutes and the function of the Oireachtas as the legislature of the State. Before going on to address the issue in that context I wish to refer briefly to experience in other jurisdictions and certain case-law in this jurisdiction.

66. Reliance was placed by Counsel on developments in some other common law jurisdictions where the exclusionary rule applying to parliamentary debates has been modified or fundamentally altered. In some countries such as Canada and Australia changes have been brought about by legislation reflecting legislative policy with which we are not concerned with here. Particular reference was made to the position in the United Kingdom following the decision in Pepper -v- Hart [1993] 1 AER 42 and the United States where use of parliamentary materials in the interpretation of statutory law has been the practice for many decades. While the experience of those jurisdictions, as found in the judgments of their Courts, are interesting and illustrative, I am doubtful as to their value in helping to resolve the issue in this jurisdiction. Although questions of principle may and do arise in the consideration of this issue, such as the role of the courts in interpreting statutes, once general questions of principle are taken into account the issue in any jurisdiction concerning the use of parliamentary debates is fundamentally a question of judicial policy adopted in the context of its own constitutional framework in such jurisdiction and whether, having regard to judicial practice and experience such use should be considered appropriate or useful in that system. A purely analytical approach to judicial pronouncements in the United States or in the United Kingdom (or elsewhere) would involve evaluating what is good judicial policy or practice in those jurisdictions, something which I do not consider to be the function of this Court. Nor would it be in a position carry out such an evaluation. What is clearly illustrated is that a rule permitting the use of parliamentary debates in the interpretation of statutes has not produced a so-called “golden rule” referred to by Bennion. On the contrary it is a judicial practice which is subject to continuing debate and questioning either judicially and certainly extra-judicially. It was only in the 1940’s that extensive use of parliamentary history in the United States emerged. It is a practice that has been regarded by some members of the judiciary there with, at least, some unease. In 1953 Justice Jackson observed in one opinion “I should concur in this result more readily if the Court could reach it by analysis of the statute than psychoanalysis of Congress ... That process seems to be not interpretation of the statute but the creation of a statute” ( US -v- Public Utilities Commission of California [1953] 345 US 295) . Writing extra-judicially Justice Scalia of the Supreme Court has observed that the United States has now developed a legal culture in which lawyers routinely make no distinction between words in the text of a statute and words in its parliamentary history. According to him the resort to parliamentary history has become so common that reality has overtaken the parody in the popular quip that “one should consult the text of a statute only when the legislative [parliamentary] history is ambiguous.” He also points out how as a result of this judicial practice in the United States, statements are specifically prepared in Congress, often at the behest of lobby groups, for the purpose of influencing statutory interpretation by the Courts. At pages 483 - 485 of his third edition Bennion argues that on a proper construction of the statute in issue in Pepper -v- Hart recourse to the parliamentary debates ought to have been excluded, a view expressly disagreed with by Lord Bingham in R -v- Secretary of State for the Environment etc [2001] 1 AER 195 at 211 . That is not a debate, if debate it is, which I would wish to enter upon. Suffice it to say that as regards modifying rules of construction it is essentially for each jurisdiction to decide according to its own appreciation of considerations of judicial policy in the context of the factors which I have referred to above. Also the nature of rules of construction as ancillaries to the construction of statutes is such that once a rule is in place whether it is relevant or applicable in any given case in turn depends on the nature of the particular statute and the interpretative problem which it poses. Hence the use of any rule of construction as evidenced in judgments of the Courts is rarely other than an ad hoc illustration of its use rather than a decision in principle. For these reasons it does not seem to me that analysis of judgments of other jurisdictions concerning these matters would be of great value from the point of view of determining judicial policy in this country on that issue.

67. In support of its submissions, the Appellants relied inter alia on the judgments of Costello, J. in Wavin Pipes Ltd -v- Hepworth Ireland Co. Ltd the High Court, [unreported, 8th May, 1981] and D.P.P. -v- McDonagh [ 1996] 2 I.L.R.M. 468 which was a judgment of this Court. In the former case, Costello J. relied in large measure on the decision of this Court in Bourke -v- Attorney General and Wymes [1972] I.R. 36 for his view that the classic common law rule, according to which reliance on parliamentary material was excluded for the purposes of interpreting statutory enactments, should no longer apply. However, the Bourke case was concerned with an entirely different issue, namely the interpretation of a particular section of the Extradition Act, 1965 which the Supreme Court considered had been derived from Article 3 of the European Convention on Extradition (Paris, December 1957). For a very long time principles of common law concerning the interpretation of statutes which give effect to international treaties permit the Courts to interpret such a statute in the light of the meaning of relevant provisions of the treaty concerned. No doubt this is in part because the intention of the national legislature is clear - to give effect to provisions of the treaty in domestic law - and the objective consequence of that intent can be clarified or ascertained, where necessary, by reference to the meaning of the relevant provisions of the treaty, itself a legal instrument. There is also the consideration that contracting parties to international agreements should seek, as far as possible, to give uniform effect to its provision in domestic law. Furthermore, with this latter objective in mind, international treaties are interpreted in accordance with the principles of international law according to which the travaux prepatoires may be consulted for the purposes of their interpretation (unless such an approach is excluded, expressly, or by implication by the terms of the treaty itself or if there are no travaux preparatoires available). This common law approach to the interpretation of statutes giving effect to treaties has existed side by side with the general rule which excludes recourse to parliamentary debates and which Costello, J. then acknowledged has been extant since 1769 (citing Miller -v- Taylor 4 Burr 2303). This rule, Costello, J. acknowledged, “ has been applied ever since both in England and in this country ”. The decision in Bourke -v- Attorney General does not purport to qualify the common law exclusionary rule as to parliamentary history of statutes.

68. Perhaps at this point I should expressly refer to a distinction between ‘ legislative history ’ and ‘ parliamentary history’ of a statute - at least for the purposes of this judgment. In some writings and judgments the former term is used so as to include the latter but in classic common law tradition that is not the case. As the seventh edition of Craies observes at page 126 “ The cause and necessity of the Act may be discovered, first, by considering the state of the law at the time when the Act was passed. In innumerable cases the Courts, with a view to construing an Act, have considered the existing law and reviewed the history of legislation upon the subject ”. Craies also observed that it was hardly necessary to cite authorities for this proposition. This is an approach which permits an Act to be interpreted in the light of its legal historical context and with regard to the provisions of other Acts

69. As regards the judgment of this Court, delivered by Costello, P, in The People (D.P.P.) -v- McDonagh [1996] 2 I.L.R.M. 469 the Appellants have relied on the following observations in that judgment; “ It has long been established that a Court may, as an aid to the construction of a statute or one of its provisions, consider its legislative history, a term which includes the legislative antecedents of the provisions under construction as well as pre-parliamentary material relating to it ”. First of all I would observe that in that case no reliance was placed on or consideration given to parliamentary debates nor indeed to any history of the Act in issue before the Oireachtas. The observations, therefore, must be regarded as obiter. I also agree with the observations of Geoghegan, J. in his judgment in the High Court in this case where he stated “ The passage from the judgment of Costello, P. which I have cited begins with the words ‘ It has long been established...’. Quite clearly it has not been long established in Ireland that a Minister’s statement could be used in aid of construction. I do not think that Costello, P. had that in mind at all when he used that expression ”. Of course, one can conclude from the passage cited, as Geoghegan J. went on to remark, that Costello, P. was of the view that in certain circumstances such a ministerial statement could now be relied upon. That however, was obiter.

70. Counsel for the Appellants also refer to a number of more recent decisions of the High Court on this issue in which it was considered that references to parliamentary material was permissible. The reasoning in those cases, for obvious logical reasons, were in essence based on the cases to which I have referred above or at least one of them. The purpose of my observations on the cases specifically cited above is to express my conclusion that the question as to whether parliamentary debates may be relied upon as aid to the construction of statutes cannot be considered to have been definitively decided and no discourtesy is intended in not citing in detail other cases which have followed such decisions as Wavin Pipes Ltd or D.P.P. -v- McDonagh .

71. I would just add that it is a common feature of those cases to cite a statement in a judgment of the Supreme Court of the United States (United States, the American Trucking Association [1940] 310 US 534 at 543) which says “ When an aid to construction of the meaning of words as used in the statute, is available, there certainly can be “no rule of law” which forbids its use, however clear the words may be on superficial examination .” I confess that I find it difficult to deduce a principle or a judicial policy from this statement since there is little in the judgment from which the extract is taken which sets out adequate criteria by which such an approach might be applied. Apart from its rhetorical content the statement discloses an open-ended approach very much in a United States context which if applied in this country could equally apply to the ‘Heads of a Bill’ submitted to the Government by the promoting department for the initial decision to proceed with a Bill or a memorandum supporting such a submission, departmental briefings to the parliamentary drafter or indeed an affidavit from the parliamentary drafter as to what he or she really meant when drafting a Bill. One could extend the list. The issue in this case requires rather closer scrutiny as to the methodology used by the courts for the purpose of ascertaining the will of the Oireachtas as expressed in Acts adopted.

72. In counterpoint to the submissions made on behalf of the Appellants, the Respondents relied on the dictum of Walsh J. in The People (D.P.P.) -v- Quilligan (No. 1) [1986] I.R. 496 , 511, where he stated “ Whatever may have been in the minds of the members of the Oireachtas when the legislation was passed ...” their intention must be deduced ‘ from the words of the statute ”. Furthermore, in Howard -v- Commissioner of Public Works in Ireland [1993] I.R. 101, although the admissibility of debates in the Oireachtas was not directly in issue, Finlay, C.J. stated that “... it would not be permissible to interpretate a statute upon the basis of either speculation or indeed, even of actual information obtained with regard to the belief of individuals who either drafted the statute or took part as legislators in its enactment with regard to the question of the appropriate legal principles applicable to matters being dealt with in the statute ”

73. In that case also Blayney, J. (with whom Finlay, C.J agreed) endorsed the rule expressed in Maxwell on the Interpretation of Statutes (12th edition p.28) to the effect that “ it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law ”.

74. Clearly a great deal of weight must be given to all the judicial views expressed on this question which underline that the issue here involves serious questions of judicial policy concerning the interpretation of statutes.

75. The legislative organ of the State is the Oireachtas. The Oireachtas consists of the President, and two houses, Dáil Éireann and Seanad Éireann (Article 15.1.2). Article 15.2.1. declares “ The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State”. This is subject only to the power of the Oireachtas to make provision by law for subordinate legislatures.

76. The Constitution contains fairly detailed provisions concerning the initiation of Bills in one house and the passing of the Bill by the other. There are particular provisions for a Money Bill which may, for example, only be initiated in Dáil Eireann. Otherwise any Bill may be initiated in one house and accepted or passed by the other house. Article 25.1. provides “ as soon as any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution shall have been passed or deemed to have been passed by both houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article ”.

77. Sub-Article 2.1 provides “ Save as otherwise provided by this Constitution, every Bill so presented to the President for his signature and for promulgation by him as a law shall be signed by the President not earlier than the 5th and not later than the 7th day after the date on which the Bill shall have been presented to him ” (There is special provision for signing and promulgation of a Bill as law in a shorter period).

78. Article 25.4.1 provides “ Every Bill shall become and be law as and from the date on which it is signed by the President under this constitution ...” The next sub Article provides “ Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiúil, stating that the Bill has become law ”.

79. Leaving aside the provisions of a Bill expressed to be a Bill for the amendment of the Constitution which falls into a special category which is not relevant to present considerations, the President may decline to sign and promulgate as law a Bill (other than a Money Bill) passed or deemed to have been passed by both houses of the Oireachtas if, in the exercise of his or her absolute discretion, after consultation with the Council of State, he or she decides to refer the Bill to this Court pursuant to Article 26 of the Constitution for a decision on a question as to whether such Bill or any of its provision are repugnant to the Constitution.

80. What emerges from the foregoing provisions is essentially self-evident. Only that version of a Bill which is passed or deemed to have been passed by both house of the Oireachtas and which is signed and promulgated into law by the President is an Act of the Oireachtas. The Constitution does not assign or recognise any special role for the initiators or promoters of a Bill. The legislative process consecrated by the Constitution, commencing with the initiation in one or other House of the Oireachtas and culminating with its signature and promulgation into law by the President, is the means by which the constitutionally expressed will of the Oireachtas is achieved. It is by laws so adopted and promulgated that the citizens are bound. It is to the text of those laws as promulgated that they, or their legal advisors, look to ascertain the obligations or rights for which they provide or regulate.

81. As has often been said by this Court, the Courts are one of the organs of government, the judicial organ of government, referred to in Article 6 of the Constitution. Included in their role is the task of applying Acts of the Oireachtas in justiciable disputes between citizens or between a citizen and the State and for that purpose to interpret them. It is frequently said that in interpreting Acts of the Oireachtas the Court seeks to ascertain the “intent” of the legislature or as Blackstone put it at page 59 of his Commentaries “ the will of the legislature ”. The phrase “ intent of the legislature ” is, on a casual view, ambiguous because it does not expressly convey whether it is the subjective intent or the objective intent of the legislature which is to be ascertained. Manifestly, however, what the Courts in this country have always sought to ascertain is the objective intent or will of the Legislature. This is evident for example from the rule of construction according to which when the meaning of the statute is clear and definite and open to one interpretation only in the context of the statute as a whole, that is the meaning to be attributed to it. There has never been any question of examining the statute further in the light of external aids so as to ascertain whether parliament had an intent which it failed to adequately express, at variance with that to be clearly found in the statute.

82. The role of the courts in the interpretation of statues, as a matter of principle, is summed up with great clarity by Lord Nicholls in R -v- Secretary of State for the Environment etc ., at 216 (cited above) when he said “ Statutory interpretation is an exercise which requires the Court to identify the meaning borne by the words in question in the particular context . The task of the Court is often said to be to ascertain the intention of parliament expressed in the language under consideration. This is correct and maybe helpful, so long as it is remembered that the ‘intention of parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the Court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the Minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members about the house. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus when the Courts say that such and such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said ... ‘We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used’ .”

83. The principle of objective intent at the root of the role of the Courts in interpreting statutes is, as I have indicated, the same in this country. The intent of the Oireachtas is imputed to it on the basis of the text of an Act adopted and promulgated as law in accordance with the Constitution.

84. Any proposal that the Courts should go behind the constitutionally expressed will of the Oireachtas so as to rely on the statement of one member of one house, whatever his or her status, must be approached with circumspection and constitutional prudence. To go behind a will so expressed so as to look at such statement and impute an intent expressed by one member to the Oireachtas as a whole may, and I use that word guardedly, risk compromising the legislative process and the role of other members of the Oireachtas. Thus the question as to whether reliance should be placed by the Courts on the parliamentary history of an Act raises considerations which in my view render the issue sui generis and not to be equated with reliance on other external aids such as reports of Commissions which give a contextual background to legislative history. The use of such external aids has a different provenance, gives rise to different considerations and although they too must be relied on with circumspection, we are not concerned with them in this case.

85. It is in the context of the constitutional role of the courts to ascertain the will of the Oireachtas as constitutionally expressed that the question of judicial policy concerning recourse to parliamentary history, and in particular statements of a minister or other member of the house, for interpretative purposes falls to be considered. I think it can be fairly said that the primary duty of the Houses of the Oireachtas is to express the legislative will in the constitutionally prescribed manner in an Act which they adopt. Such a duty would reflect the universal constitutional principle in a democratic society: Men, and women, may intend what they will; but it is only the laws which they enact which bind us.

86. Of course the Oireachtas may, subject to the Constitution, adopt by law rules governing the interpretation of statutes which are the fruits of the legislative process. One example of this is the Interpretation Act 1937. Section 11 (g) of that Act provides at least one indication of the unique importance which the Oireachtas itself attaches to the actual text of an Act. That subparagraph provides, inter alia :

87. Although marginal notes are to be found on a Bill on its introduction in the Oireachtas, and continued in the Act adopted, the Oireachtas was nevertheless careful to exclude them from consideration by the Courts, however helpful they might be in some circumstances, as an aid to interpretation. It might come as a surprise to members of the Oireachtas that a statement of a minister or other member of the house were to be relied on by the Courts in construing a statute, even as an aid.

88. A Minister or promoter of a Bill may feel constrained when intervening in the cut and thrust of parliamentary debate to choose her or his words carefully for fear of giving rise to any misunderstanding as to her or his intent on a subsequent parsing of those words in a court of law. On the other hand it has been suggested that a clear and deliberate statement on the part of the Minister or other promoter of the Bill as to the purpose for which it is been introduced could be a helpful aid to interpretation. Apart from other considerations which I will refer to, there is the foreseeable risk that the promoter of the Bill would feel constrained to make statements calculated specifically for interpretative purposes, something which has occurred in the United States. Even if a Minister did not feel so constrained, the fact remains that Ministers or other promoters of Bills do routinely inform the House in question of the general purposes of the Bill and the reasons for its introduction. Statements, calculated or otherwise, promoting a Bill passing through a politically contentious process would not necessarily constitute a neutral aid to construction. If the courts were to go behind an Act and look at the proceedings in the Houses of the Oireachtas and statements made by the promoter of a Bill for the purposes of interpreting the Act adopted, it would place an onus on other members of the Oireachtas to examine his or her spoken words for its implications as to the ultimate effect of a Bill when it becomes law. They would have to do so from a perspective which they have never had to do and which does not currently arise.

89. As the legislative organ of State the Oireachtas has, subject to the constitution, exclusive responsibility for the conduct of its proceedings so I refer to these general considerations primarily for the purpose of indicating that any decision to rely on statements made in one or other House as an aid to the construction of an Act could have implications for the conduct of the legislative process which is another reason for the Courts to consider this question with prudence.

90. Counsel for the Appellants in support of his submission that the Court should have recourse to parliamentary materials relied on the ruling of the learned High Court Judge who, having referred to the decision in The People (D.P.P.) -v- McDonagh stated “ The Court would not be precluded from looking at such ministerial statement or explanation merely because the statutory provision was unambiguous using the traditional canons of construction. If the statement or explanation supports a construction of the section which would be just about open under the ordinary rules of construction, but which would not have occurred to the Judge, he is entitled at least to take it into account. Putting it another way, Counsel is entitled to produce the ministerial statement to the Judge with a view to persuading the Judge that the view he appears to be taking is wrong .”

91. On practical grounds alone this is too broad a portal through which to allow parliamentary material to enter into consideration in the interpretation of Acts of the Oireachtas. It would seem unavoidable that recourse to ministerial statements to confirm, contradict, verify, strengthen, qualify even nuance a particular construction argued for would enter into most if not every contentious case. Account would have to be taken of amendments in one or other House subsequent to a statement. It would be a foolhardy if not negligent lawyer who didn’t at least trawl through the parliamentary interventions of Ministers in one house or both in order to check whether there was something which supported one interpretation or another. Similar considerations could arise when lawyers, accountants or other professionals are advising clients, private or corporate, concerning the implications and effect of an Act. This would be a complex and burdensome exercise - evaluating what weight the courts might attach to this or that sentence or passage in a Minister’s speech. It would add to legal costs. It is difficult to envisage that a ministerial statement could always be divorced from the context of a debate as a whole particularly if a different perception of the Bill was expressed by other members who nonetheless supported the passage of the Bill. That is a situation that one could not exclude. The option of having recourse to ministerial statements generally in the interpretation of Acts must at least risk introducing uncertainty where none may have existed. As the learned trial judge observed “ In practice, ministerial statements in the Dáil will not usually be of assistance to a court in construing a statutory provision .” In the instant case the learned trial judge found some indirect support from the ministerial statement for the interpretation which he attributed to section 2 of the Act but, as he pointed out, it was an interpretation which he had already adopted independently of the ministerial statement. At best, recourse to ministerial statements as an aid to interpretation would have limited value in a limited number of cases. The disadvantages of permitting recourse to ministerial statements greatly outweigh potential benefits. For these reasons I think the submissions on behalf of the Appellants should fail. They should also fail for other reasons.

92. The disadvantages concerning complexity and uncertainty, to which reliance generally on ministerial statements could give rise would not, to my mind, be greatly ameliorated by limiting such reliance only to cases where there is ambiguity in the statute or the need to avoid a patent absurdity and the ministerial statement is clear and unequivocal. First of all I would recall that there are a wide range of canons of construction and presumptions available which are more sophisticated and neutral aids to the resolution of such interpretative problems. Also available are methods of interpretation such as the purposive or teleological approach to statutory construction.

93. Reliance on a ministerial statement only when it is clear and unequivocal, would displace the focus of interpretation from the statutory text to another location namely the wording of that statement.

94. Even then, if clarity or lack of ambiguity is not achieved in a carefully prepared and drafted Bill or one the text of which undergoes parliamentary scrutiny at each stage of its passage through the Oireachtas, the occasions on which it would instead be found in a ministerial statement must, to say the least, be limited.

95. Having regard to the considerations I have outlined above concerning the role of the Oireachtas recourse to statements of ministers could have implications for the parliamentary process, I put it no further than that, which the courts should avoid unless there are cogent and countervailing judicial reasons for doing so. In my view the existence of such cogent or countervailing judicial reasons have not been demonstrated by the Appellants.

96. Another disadvantage in this context is that there is nothing before us to indicate that the statement of a Minister in one House is available or taken into account by the other House when considering the Bill. A Court could have material before it which was never considered by one House.

97. Would recourse by the courts to parliamentary statements, even in limited circumstances, have implications for the exercise by the President of his or her discretion to refer a Bill to the Supreme Court pursuant to Article 26 of the Constitution? I must confess I am not sure what the answer to that question might be. It is another reason for a cautious approach to changing the existing rule.

98. The presumption of constitutionality means that as between two or more possible constructions of an Act (or a Bill in an Article 26 reference) the construction that is in accordance with the provisions of the constitution would prevail over any construction that is not so. (East Donegal Co-operative, 1970 IR 317 and the Adoption (No. 2) Bill, 1987, 1989 IR 656). Consideration of a ministerial statement which appeared to promote a construction which was incompatible with the Constitution would, it seems to me, conflict with that well established presumption. Members of the Oireachtas are entitled to rely on this presumption when deciding on matters of legislation. Going behind the Act and entering the chamber so to speak to look at ministerial statements would give a status to the promoters of a Bill to the disadvantage of other members of the house which is something this Court should be reluctant to do at least in the absence of compelling grounds. No such grounds have been shown.

99. Having regard to the respective roles of the Oireachtas and of the courts and all the considerations which I have mentioned, I am not satisfied that it has been shown that recourse to ministerial statements as an aid to the construction of statutes is sufficiently neutral useful or efficient to outweigh, from a judicial policy point of view, the disadvantages or possible inconveniences of abolishing or modifying the exclusionary rule. I do not in this case consider it necessary to go so far as to say that this should be decided as a matter of principle.

100. Maintaining the classical exclusionary rule also has the advantage of avoiding a potentially dangerous dichotomy entering into the interpretative practice of the courts. The Courts seek the objective intent of the legislator while the purpose of looking at parliamentary debates as a source of interpretation is to seek the subjective intent. Even in contemporary circumstances applying the traditional exclusionary rule is more likely to promote certainty in the interpretation of statutes than to dilute it. It also has the advantage of avoiding any risk that in abolishing or modifying the exclusionary rule the courts might, even unwittingly, affect the legislative process of the Oireachtas and the role of the members of the two Houses.

101. The matters to which I have referred are sufficient in my view for concluding as a matter of judicial policy that no sufficient grounds have been established for abolishing or qualifying at this time the established exclusionary rule concerning recourse to parliamentary proceedings.

102. Accordingly no reliance should be made on the statement made by the Minister in Dáil Éireann concerning the purpose of section 2 of the Act.

103. As regards the substantive legal issue of interpretation I agree with the judgment of Mrs Justice Denham and with the order which she proposes should be made.

104. I have had the advantage of reading the judgment which has been delivered by Mrs Justice Denham and also the judgment which has been delivered by Mr Justice Murray and the judgment which is about to be delivered by Mr. Justice Fennelly. I agree, as do Mr Justice Murray and Mr. Justice Fennelly, with the conclusions reached by Mrs Justice Denham in regard to the principal matter at issue in this case - the interpretation to be given to Section 2 of the Health (Amendment) Act 1986 in regard to the manner of calculation of the charges to be imposed by the Health Board under that Act.

105. I also agree with the conclusion of Mrs Justice Denham that insufficient grounds have been established for abolishing or qualifying the established exclusionary rule concerning recourse to parliamentary proceedings as a matter of judicial policy at this time.

106. Mr Justice Murray in his judgment has provided a wide ranging and in-depth analysis of the latter issue - the admissibility of ministerial statements or, more widely, parliamentary debates, as aids to the interpretation of Statutes. Mr Justice Murray reaches the conclusion that recourse to ministerial statements as an aid to the construction of statutes is not sufficiently useful or efficient as to outweigh, from a judicial policy point of view, the disadvantages or possible inconveniences of abolishing the exclusionary rule. He does not, however, go so far as to say that this should be decided as a matter of principle in the present proceedings. I am in full agreement with these conclusions.

107. Mr. Justice Fennelly in his judgment, having referred to a number of additional authorities also addressed the difficulties both in principle and in practice of allowing the use of Parliamentary Debates in the interpretation of Statutes by the Court. I agree with his conclusion that in the context of the present appeal the statement of the Minister should not have been considered.

108. In this short addendum to the judgments of my learned colleagues, I wish to stress that I entirely share Mr Justice Murray’s concerns as to the constitutional impropriety of blurring the distinction between the legislative task of the Oireachtas in forming and enacting the law and the judicial task of the Courts in interpreting the law as it has been enacted.

109. Apart from these concerns of principle, it seems to me that there are very real practical difficulties in the way of such reliance on either ministerial statements or Parliamentary Debates in the construction of statutes.

110. The process of legislation by the Oireachtas is essentially collective. It is the Oireachtas as a whole which legislates. It would in my view be a misleading oversimplification of this process to rely, in interpreting a statute, on ministerial statements alone. Particularly in the case of more complex statutes, which pass through a lengthy Committee Stage, contributions come from all sides of both Houses of the Oireachtas. The statute as finally enacted may well have been extensively amended and may differ crucially from the Bill as introduced by the Minister’s initial introductory statement at the Second Stage. For the Courts to rely on ministerial statements in interpreting statutes would not, therefore, reflect the will of the Oireachtas as a whole. Yet to search the entire Parliamentary Debates for indications as to the proper interpretation of statutes would be both complex, time consuming and extremely difficult in practice. Such a procedure would be open to all the criticisms voiced by both Mr. Justice Murray and Mr. Justice Fennelly in their judgments.

111. The actual issue between the parties in the present proceedings can be decided without this Court making a decision in principle on the use of parliamentary proceedings as an aid to the construction of statutes. I am, however, clear in my view that in the present proceedings the statement of the Minister should not have been considered. The issue of admissibility of Parliamentary Debates is of considerable importance and will, no doubt, arise again in the future. As a matter of general judicial policy, however, I share the view of Mr. Justice Murray that at present insufficient grounds have been established for abolishing or gratifying the established exclusionary rule.

112. I agree with the judgment of Denham J on the issue of interpretation of section 2 of the Health (Amendment) Act 1986 and on the order which she proposes. I also agree with both Denham and Murray JJ that evidence in the form of parliamentary debates should not be considered by the Court in this case, but I would like to explain my approach to this issue.

113. The appellant has asked the court to receive in evidence, for this purpose, a statement made in the Dáil by the Minister for Health in recommending the bill to the House. He said:

114. Geoghegan J took this passage into consideration in the High Court but only to enable him to reach a conclusion on the first argument advanced by the insurer, i.e. that the charge to be made under the section was not the same as the charge provided for by section 55 of the Health Act, 1970. He had, however, already come to a clear conclusion on this issue. He went on to consider the effect of the Minister’s speech because of the importance of the point for future cases and in case there should be any doubt about his interpretation. On the other hand, he declined to consider the rest of the ministerial statement as it was merely indicative of ministerial policy.

115. Geoghegan J had prefaced his consideration of the issue by a review of the Irish authorities and a brief reference to Pepper v Hart [1993] 1 All ER 42. He took the view that the Supreme Court had gone much further in People (DPP) v McDonagh ( McDonagh ) [1996] 1 I.R. 565.

116. There is no dispute that the traditional common-law rule was that, whatever about certain other extraneous materials such as commission reports, statements made during the progress of a bill through parliament were not admitted in aid of its interpretation after it had been passed into law. Counsel for the appellant submitted that the situation had now changed to such an extent that, if this Court declined to depart from that rule it would be unique among common-law jurisdictions.

117. There are, it seems to me, reasons both of principle and of convenience which plead in favour of caution in modifying the rule, or at least lean against its unqualified abandonment. I agree with Murray J. that what is at issue is better described as judicial policy rather than a fundamental principle.

118. I will commence with the statement of Costello P, when giving the judgment of this Court in McDonagh:

119. The learned judge then quoted a decision of the US Supreme Court which is discussed below and continued:-

120. This statement must now clearly be read in the light of the judgment of this Court in In the matter of Article 26 of the Constitution ..... and ... the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. It is worth quoting in full the passage from the judgment of the Court delivered by Keane C.J. on the issue of admissibility of speeches in the Oireachtas in aid of discerning the purpose of considering the purpose of the provisions which were there at issue. The passage is as follows:

121. This passage prompts a number of observations. Counsel’s purpose in citing Oireachtas debates was apparently to cast light on the purposes of the legislation. It is not absolutely clear whether a distinction was being made between the meaning and the purpose of a statutory provision. In other words, parliamentary debates might be admissible to assist in discerning the first but not the second. The general context of the passage suggests that the court did not make such a distinction. For my own part, I think such a distinction must be too theoretical to be a reliable guide to the circumstances in which extraneous materials will be admissible, though there was some discussion of it in one of the English cases to which I will refer. The Court went on to distinguish both McDonagh itself and the principal authority upon which Costello P had relied, ( Bourke v Attorney General ). In the latter respect, the Court drew attention, as does Murray J. in his judgment in this case, to the distinctiveness of the rule permitting resort to travaux préparatoires when interpreting international agreements.

122. Treaties are interpreted in accordance with special rules, long recognised in international law and now expressed in the Vienna Convention on the Law of Treaties of 1969. The fact that those rules, Article 32 in particular, make specific provision for reference to travaux préparatoires can, of itself, have no bearing on the interpretation of statutes. Article 32 provides:

123. Article 31 states the general rule, according to which, a “ treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Moreover, there is cogent persuasive authority to the effect that resort to these materials should be rare. ( Fothergill v Monarch Airlines [1981] AC 251, per Lord Wilberforce at page 278.)

124. The court in the Illegal Immigrants case drew attention further to the fact that McDonagh itself was not an authority for the admissibility of Oireachtas debates, since it was concerned with legislative history in the sense of the usefulness of reference to similar provision in an English statute.

125. Next the Court referred to the earlier decision of Costello J in Beecham Group v Bristol Myers. It observed that the learned judge had had regard to Dáil debates even where the statutory provision under consideration was itself “perfectly clear and unambiguous.” As the Court noted, this approach would not have been acceptable even under the later approach of the House of Lords in Pepper v Hart.

126. The key point, however, is that the Court did not consider that it could derive any assistance from Dáil debates. The meaning of the provisions was clear. Although the Court did not expressly disapprove Beecham Group v Bristol Myers , it seems to me that it did so implicitly when it stated that the court was “solely concerned with the meaning of the legislation as passed by the two Houses of the Oireachtas” and “the two provisions as passed by them are to be construed in accordance with normal canons of construction...”

127. Where the meaning was clear, it declined to have regard to parliamentary debates. It is true that this pronouncement is qualified by the phrase, “Whatever may be the position in other cases.” I cannot see any basis for adopting a different approach in “other cases” , assuming that description to refer to cases other than references by the President to the Supreme Court pursuant to Article 26 of the Constitution. In either event, the meaning of a statutory provision must be ascertained.

128. Before returning to express my own more general views on the issue, I will refer to a small selection of the material which has been cited from other common-law jurisdictions.

129. The United States is perhaps pre-eminent among the common-law jurisdictions in the world. The range of its legal materials is almost unlimited in its range and its depth. However, it is also notorious that great legal issues are the subject of almost permanent debate often surrounded by heated controversy. We are not, in our courts sufficiently familiar with US jurisprudence to be in a position confidently to assert that one or other school of thought represents the accepted position, at least on controversial issues.

130. Murray J in his judgment delivered today draws attention to the dictum of Justice Jackson in his concurring judgment (though dissenting on the issue he raises) in United States v Public Utilities Commission of California (1953) 345 US 295:

131. It seems that there is a long-established practice in the United States, in spite of occasional dissents such as those cited from Justice Jackson, (and currently Justice Scalia) of considering a wide variety of legislative materials including congressional debates. It does not appear that the Supreme Court justices are conscious of the existence of any rule of law to the contrary. This emerges most clearly from the full context of the passage of which part was cited by Costello P in McDonagh from the judgment of the Supreme Court of the United States in United States v American Trucking Association (1940) US 534 at p 543-544:

132. Obviously this thinking is far removed from the established approach to statutory interpretation in this jurisdiction. In particular, it would be impossible to reconcile it with the judgments of the majority of this Court in Howard v Commissioners of Public Works [1994] 1 I.R. 101. Blayney J, with whom Finlay C.J. and Denham J agreed, expounded, by reference to authoritative textbooks and case-law, the traditional rule that the intention of the legislature can be gathered only from the meaning of the words used in the legislation. Finlay C.J. added:

133. Denham J stated:

134. It is, I think, unnecessary to refer to any extent to the views of Australian, New Zealand and Canadian courts. The different approaches which prevail in those jurisdictions and others have been thoroughly explained in the Consultation Paper of The Law Reform Commission (CP14-1999): Statutory Drafting and Interpretation: Plain Language and the Law. It seems, for example, that Australian interpretation legislation gives express power to the courts to give consideration to a wide range of extraneous material including the speech made in either House of the Australian Parliament by the Minister moving the adoption of a bill on second reading. In several of the jurisdictions studied, the legislation requires the courts to give large and liberal meaning so as to attain its objects whether ascertainable from the legislation or not.

135. However, the jurisprudential development which has received the greatest attention in this jurisdiction in recent years is the decision of the House of Lords in Pepper v Hart. The underlying issue concerned the taxation of benefits in kind. The taxpayers were teachers. They were allowed to have their children educated at the school where they were employed for one quarter of the normal fees. This was a taxable benefit in kind. The legislation provided for taxation on the basis of cost to the employer, but that was ambiguous, because it was not clear if it should be measured as an average of the entire cost or on the basis of marginal cost of educating an additional student. The intention of the Minister responsible for proposing the relevant legislation, assuming it to be admissible, was that taxation should be on the latter basis with the effect that the tax would be either very little or nil. Lord Browne-Wilkinson gave the leading speech. Since the legislation was ambiguous he proposed a limited modification of the existing exclusionary rule. This would be subject to three conditions: “(a) legislation is ambiguous or obscure or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.”

136. The obverse of the first criterion is that such evidence will not be received if the meaning is clear. On that principle, the ministerial statement would not have been accepted by the learned trial judge in the present case. A more fundamental question is whether this is a workable criterion. In my view it is not. The difficulty is well illustrated by the second and more recent House of Lords decision cited to the Court at the hearing of this appeal. In R v Secretary of State for the Environment, Transport and the Regions and others, ex parte Spathe Holme Ltd [2001] 1 All ER 196, the House was divided on the issue of whether the statutory provision was clear. Furthermore, there was disagreement as to whether the Pepper v Hart rule extended to interpretation of the scope or purpose of a statutory power or was limited to the interpretation of the meaning of a provision. I have referred to this point earlier in connection with the remarks of this court in the Illegal Immigrants case. It is right to say, nonetheless, that the House was generally concerned to see that the Pepper v Hart conditions were strictly respected for fear that the practical inconveniences which had motivated Lord Mackay’s dissent in that case should materialise.

137. I will conclude by explaining my reservations about the use of the sort of parliamentary material at issue in this case, i.e. a speech made during a Dáil debate. It is enough for those purposes to say that they should not be received for the purpose of confirming a view at which the court can arrive without them. I do not rest my opinion on constitutional considerations. They may - I do not say that they will - arise if and when the matter has to be more directly addressed and the wider implications of the Court’s opinion in the Article 26 reference cited above have to be considered. They obviously have not troubled the US Supreme Court in the judgment cited or the House of Lords when it had to consider the implications in the light of section 9 of the Bill of Rights in Pepper v Hart.

138. Once the principle is accepted that the courts will look at parliamentary debates – even limited to the speech of the responsible Minister – it seems to me inevitable that counsel will feel under a professional obligation, by reason of the duty owed to the client, to investigate that matter in every case. The available material may be considered unhelpful in a great many cases, but at least the work will have to be done, with inevitable implications for legal costs. It is equally inevitable that in a great many cases the courts will be asked to consider the fruits of researches so performed. Thus, even though a court is able to interpret a provision without difficulty in accordance with normal canons of construction, much additional material will have to be reviewed, assessed and judged. In this respect I share the reservations expressed by Lord Mackay in Pepper v Hart. He said:

139. Both Geoghegan J and all the members of this Court are of the view that the meaning of the section at issue is clear. To admit that material in such a case would be tantamount to admitting them in a great many cases. It is not possible to lay down in advance a satisfactory or workable threshold precondition based on the ambiguity of the statutory provision or the decisiveness of the ministerial statement. One lawyer’s clarity is too often another’s ambiguity. More typically, a party takes as his point of departure that the provision is clear in his favour. He will thus present the parliamentary debate as an alternative.

140. Following the cautious example of the Court in the article 26 reference I would not wish to restate the exclusionary rule on any basis broader than the precise context of the present appeal. In my view, the statement of the Minister should not have been considered.