Statute Law Review, 2017, Vol. 00, No.

00, 1–16
doi:10.1093/slr/hmx017

Statutory Forebears: Legislative

Evolution as a Means of Statutory
Interpretation
James Steele*

A B ST R A CT
Legislative evolution is the technique of examining successive changes made to a stat-
ute, as to draw clues of the drafter’s intent. In our modern age of contextual interpreta-
tion, prior legislative interventions may offer compelling evidence of Parliament’s intent
in enacting any given provision. Despite evolution’s interpretative significance, however,
there exists no consolidated study of its theory and operation. Aimed to assist both
academic and practitioner, this article seeks to contribute to the law of statutory inter-
pretation by providing the first comprehensive survey of evolution as an interpretative
technique. Codifying existing scholarship of United Kingdom, Canada, and Australia, it
analyses evolution’s methodology and use, its distinct identity from legislative history, its
admissibility and weight, as well as offering original analysis on such issues as evolution’s
use as an extrinsic aid. Moreover, the issue of subsequent evolution (the interpretation
of a statute in light of its successor enactments) is considered. On this issue, the author
surveys the divergent approaches taken by different Commonwealth courts before ulti-
mately advocating in favour of recourse to subsequent evolution, arguing that to do oth-
erwise would render a later statute unnecessary or futile.

INTRODUCTION
Legislative evolution examines successive changes made to a statute in the hope of draw-
ing clues as to the drafter’s intent. In The Mayor’s Office for Policing and Crime (Appellant)
v. Mitsui Sumitomo Insurance Co et al.,1 the Supreme Court of the United Kingdom deter-
mined that consequential losses were not recoverable under the Riot (Damages) Act
1886 (the ‘Act’). Of equal interest to the specific holding, however, was the degree of
reliance placed on legislative evolution. Namely, by examining the Act’s prior lineage, the
Court identified a previous legislative trend away from unrestricted recovery.
Although providing an excellent example of evolution’s insight, Mayor’s Office nowhere
discussed evolution as an interpretative technique. A review of prior case law and aca-
demic texts shows limited judicial or academic commentary on this interpretative tool,

* Barrister, Robertson Stromberg LLP, Saskatchewan, Canada. He can be reached at j.steele@rslaw.com. The author thanks
Professor Stéphane Beaulac and Professor Dennis Pearce for their helpful comments. The usual caveats apply.
1
[2016] UKSC 18.

© The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@
oup.com.

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with scattered references merely addressing discrete aspects of the technique. Aimed to
assist both academic and practitioner, this article seeks to contribute to the law of statu-
tory interpretation by providing the first comprehensive survey of evolution’s theory and
application. It codifies existing Commonwealth scholarship respecting evolution’s doc-
trinal rationale, methodology and use, distinct identity from legislative history, admis-
sibility, and weight, and offers original analysis respecting potential practical concerns
regarding evolution as an extrinsic aid (such as the effort of researching beyond a statute’s
four corners, as well as reliability). Finally, the issue of subsequent evolution is examined
(i.e. the interpretation of a statute in light of its successor enactments). An issue of diver-
gent approaches in Commonwealth courts, the author advocates in favour of recourse to
subsequent acts, arguing that to do otherwise risks rendering a later statute unnecessary
or futile.

M AY O R’S O F F I C E V.  M I T SU I SU M I TO M O I N SU R A N C E
The History of the 1886 Act
Mayor’s Office began amidst the London riots of August 2011 when flames left a total
loss of stock and plant in a Sony warehouse. Public liability for riot damages had long
been a feature of English law, and the injured parties soon brought claims against the
police under the Act. By the time the case reached the Supreme Court, a single issue
remained: were consequential losses of rent or profit recoverable under the Act? The
provision at issue was section 2(1) of the Act:

2(1) Where a house, shop, or building in a police area has been injured or
destroyed, or the property therein has been injured, stolen, or destroyed, by any
persons riotously and tumultuously assembled together, such compensation as
hereinafter mentioned shall be paid out of the police fund of the area to any
person who has sustained loss by such injury, stealing, or destruction; but in
fixing the amount of such compensation regard shall be had to the conduct of the
said person, whether as respects the precautions taken by him or as respects his
being a party or accessory to such riotous or tumultuous assembly, or as regards
any provocation offered to the persons assembled or otherwise.2

The above words did not make immediately clear whether consequential damages were
recoverable. For instance did the phrase ‘loss by such injury, stealing, or destruction’
require only causation in order for coverage to apply? If so, the police would be liable
for a loss so long as it consequentially resulted ‘by’ such the physical destruction which
triggered the Act. Or, was the proper emphasis ‘by such injury, stealing or destruction’?
Such would limit compensation to the direct physical damage suffered.
In the Commercial Court of the High Court, Justice Flaux concluded that section
2(1) of the Act provided compensation only for direct physical damage. The Court of
Appeal disagreed, however, determining that the Act provided a right to compensation
for all heads of loss, including consequential loss. The Court of Appeal found that the
words ‘sustained … by such injury, stealing, or destruction’ could linguistically include

2
(Emphasis added).

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consequential losses. It also emphasized that riot damage laws were remedial and were,
therefore, to be liberally construed. Moreover, it felt there was the historical context for
the imposition of such broad liability, considering that predecessor enactments seem-
ingly placed the hundred (the forerunner to the police authority) in the role of a surety,
with the rioters’ liability in damages transferred to the public authority. As such, just
as ancient trespassers would have been liable in tort for all consequential losses, so the
local authority—now standing in their place—continued to incur such liability.

Mayor’s Office and the Supreme Court

A different analysis prevailed before the Supreme Court. Giving judgement for the
Court, Lord Hodge determined that the police did not, in fact, stand in the shoes
of rioters for all purposes of compensation. Rather the Act stood as a self-contained
regime of compensation, never intended to reflect all damages available at tort. As such,
consequential losses of rent or profit were not recoverable.
It is submitted that a careful reading of the Act and its predecessor enactments sup-
port Lord Hodge’s determination. Firstly, the Court’s interpretation was consistent
with the broader internal context of the Act as a whole, as other provisions of the 1886
Act clearly excluded recovery for damage to persons or vehicles. Such a conspicuous
restriction on compensation suggested that the Act was, in fact, a distinct statutory
scheme, not co-extensive with the full tortious liability of a trespasser at common law.
More importantly, and having recourse to legislative evolution, a review of the suc-
cessive riot laws showed that the surety principle was not as well-established as the
claimants argued. Laws of hue and cry—old predecessors to the Act—had in fact
allowed the community to escape liability for damages if public outcry were raised and
the offenders caught. Such an exception undermined any notion that the authority had
always stood unfailingly in the place of rioters. A key contextual guide underlying the
Court of Appeal’s conclusion was therefore eliminated.
Finally, evolution showed that the lineage of the Act as a whole evinced a clear trend
of gradually restricted compensation. A side-by-side comparison of the Act with its pre-
decessor, the Remedies against the Hundred (England) Act 1827 highlighted that the
earlier enactment had confined statutory compensation directly to ‘damage … to any
fixture, furniture, or goods’. As the preamble of the later 1886 Act was itself adoptive of
the pre-existing law, section 2(1) was to be interpreted in light of this deliberate narrow-
ing of recoverable damages.
Mayor’s Office illustrated legislative evolution at its essence. By comparison of ver-
sions present and past, the 1886 Act was shown to reflect a pre-existing legislative con-
stricting of compensation. Armed with this context, the Court was able to choose the
interpretation best reflecting this intention.

L E G I S L AT I V E E VO LU T I O N A S A M ET H O D O F I N T E R P R ETAT I O N
What Is Legislative Evolution?
In Bennion on Statutory Interpretation, legislative evolution is characterized as follows:

Where a subject has been dealt with by a developing series of Acts, the courts
often find it necessary, in construing the latest Act, to trace the course of this

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development. By seeing what changes have been made in the relevant provisions,
and why, the court can better assess the intended current meaning.3

Evolution as a technique has received clear acceptance by English courts, even if

have they rarely analysed its theoretical foundations. An example of its use came in
Jennings v. United States Government,4 where the applicant sought to avoid extradition to
California on a charge of manslaughter arising from a motor vehicle accident.
The applicant contended that her conduct as relied on by the United States govern-
ment did not amount to an extradition crime under the United Kingdom’s extradition
treaty. She argued that the only extradition crime her conduct could give rise to was the
common law offence of manslaughter, which she claimed no longer existed following
the enactment of certain 1956 and 1977 road traffic legislation.
She argued that the introduction of the statutory offence of causing death by reckless
driving, possessing the same elements as motor manslaughter, had implicitly repealed
the common law offence of manslaughter. In other words, Parliament could not have
intended the two offences, one common law and the other statutory, to both co-exist
after 1977. The issue was whether the common law offence of manslaughter had been
impliedly repealed. If it had, the California charge would raise no presently existing
extraditable offence under English law.
The House of Lords ultimately found that the offence of manslaughter remained
intact under English law, even though it was also now a distinct statutory offence. In so
concluding, Lord Roskill compared the successive acts to show that each had contin-
ued to treat manslaughter as a still-existing offence:

But, my Lords, in considering this submission it is important to observe one

matter in connection with the 1956 Act. Schedule 4, para 5, which deals with
disqualifications and endorsements, deals not only with convictions for the
new statutory offence but also with ‘manslaughter by the driving of a motor
vehicle’ as among the offences for which disqualification or endorsement may be
ordered. This provision was reproduced in the 1960 Act, a consolidating Act: see
ss 104 and 111 and Sch 11, paras 1 and 2. These separate manslaughter from the
statutory offence and thus treat manslaughter, or in Scotland culpable homi-
cide, as separate from the statutory offence in this connection.5

Lord Roskill’s side-by-side examination of prior regimes offered still another aid to
intent. Namely, manslaughter had never been explicitly repealed even while other
offences had been specifically abolished. For instance the 1977 Act had expressly
repealed the common law offence of conspiracy, but contained no similar revocation of
manslaughter in it or preceding acts:

The 1977 Act, on s 50 of which counsel relied so strongly as giving rise to an

implied repeal of the relevant part of the common law of manslaughter, itself
contains an express repeal of the common law offence of conspiracy in clear and

3
Francis Bennion Bennion on Statutory Interpretation (5th edn Butterworths London 2008) 602.
4
[1982] 3 All ER 104, [1982] 3 WLR 450 (HL).
5
Ibid at 116 (emphasis added).
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explicit language. I refer to s 5 which provides that ‘the offence of conspiracy at

common law is hereby abolished’. If Parliament had in the 1977 Act intended
to abolish the relevant part of the common law offence of manslaughter
I should have expected to find a similar provision somewhere in the legisla-
tion between 1956 and 1977. My Lords, there is none.6

Legislative evolution ultimately proved determinative in Jennings, offering the Court

‘plenty of indications of an intention that that common law offence should remain fully
intact after 1956 and after 1977 as it had before the successive statutory offences had
ever been created’.7
A different use of evolution came in Seal v. Chief Constable of the South West of the Police.8
The House of Lords utilized the technique to ascertain the scope of s. 139 of the Mental
Health Act 1983, which required the consent of the High Court or the Director of Public
Prosecutions before any party could bring proceedings against the Chief Constable of
South Wales for false detention. As no consent had been obtained by Mr Seal, the issue
was whether his proceedings were invalid, or could instead be cured retrospectively.
Lord Bingham held the proceedings to be a nullity. His examination of successive
statutory versions revealed that since the leave requirement’s introduction in 1930, a
clear consensus of judicial and academic opinion had held s. 139 to void any proceed-
ing commenced without leave (Lord Bingham appeared to rely on the presumption
that where a provision has previously received a judicial construction, any subsequent
re-enactment suggests an adoption of the existing interpretation):

While, as already noted, the restriction on access to the court in s 141 was the
subject of criticism before 1982, the House has been referred to no judicial opin-
ion and no scholarly commentary suggesting that failure to obtain the required
leave was a procedural irregularity which might be cured rather than a flaw which
rendered the proceedings null. When Parliament legislated in 1982 to 1983
there was, as it would seem, a clear consensus of judicial, professional and
academic opinion that lack of the required consent rendered proceedings
null, and Parliament must be taken to have legislated on that basis.
…
But the words first introduced in s 16(2) of the 1930 Act (‘No proceedings, civil
or criminal, shall be brought’) appear to be clear in their effect and have always
been thought to be so. They were introduced with the obvious object of giving
mental health professionals greater protection than they had enjoyed before.
They were re-enacted with knowledge of the effect the courts had given to
them. To uphold the decision of the three courts which have already considered
the issue in this case and decided it in accordance with a clear consensus of pro-
fessional opinion is not to sanction a departure from what Viscount Simonds
rightly considered to be a fundamental rule.9

6
Ibid (emphasis added).
7
Ibid.
8
[2007] UKHL 31, [2007] 4 All ER 177.
9
Ibid at [15], [18] (emphasis added).

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Unlike in Jennings, the evolution in Seal did not centre on the internal textual changes
between enactments. Nevertheless, its reasoning should still be classified as ‘evolution-
ary’, in that it utilized the technique’s core function of drawing interpretive background
from a comparison of prior versions. The evolutionary context offered in Seal was the
previous judicial and academic opinion of earlier similar provisions. A comparison of
those prior acts—as well as the constructions they had received—offered background
from which legislative intent could be drawn.10

Legislative evolution has gained acceptance beyond English shores. In the Australian
decision of Geaghan v. D’Aubert,11 the New South Wales Court of Appeal explained how
the development of a statutory scheme may assist in ascertaining legislative intent:

It is not unusual for courts to examine a prior statutory provision dealing with the
same subject matter to enable them to construe a current statute. The reason is
plain. The history of the legislative scheme may assist in ascertaining the legisla-
tive intent.

Pearce and Geddes (Statutory Interpretation in Australia (5th Edition)) have com-
mented on the good sense of this approach. The learned authors say [at p. 73]:

If one views the whole scheme of the legislation, it is possible to see the
way in which the legislature is dealing with the subject matter: whether it is
extending or contracting benefits; whether it is increasing penalties and so
on. Such information must be of use to a court in its endeavour to under-
stand the legislature’s wishes.12

The Supreme Court of Canada has similarly described evolution as ‘one of the most
effective ways of establishing legislative purpose’:

98 According to Professor Sullivan, ‘[o]ne of the most effective ways of estab-

lishing legislative purpose is to trace the evolution of legislation from its incep-
tion, through successive amendments, to its current form’: Sullivan, at p. 218. The
author asserts as well, at p. 218:

10
As Lord Radcliffe said in Welham v. DPP [1960] 1 All ER 805, [1961] AC 103, 123:
… I cannot doubt that the words ‘intend to defraud’ in the [Forgery Act 1913] must be understood in the light of
any established legal interpretation that prevailed at the date of the passing of the Act.
In essence, by leaving the text as it was, the drafter is deemed to acknowledge the interpretation as correct. For a note of cau-
tion, however, see R v. Chard [1984] AC 279, [1983] 3 All ER 637. There Lord Scarman stressed that the above principle
was only a presumption to apply ‘in circumstances where the judicial interpretation was well settled and well recognized [and
which] must only yield to the fundamental rule that in construing statutes the grammatical and ordinary sense of the words
is to be adhered to’.
11
(2002) 36 MVR 542; [2002] NSWCA 260.
12
Ibid at [22]–[23].

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Tracing may expose the legislature’s past decision to adopt a new policy or strike
out in a new direction; it may reveal a gradual trend or evolution in legislative pol-
icy; or it may reveal the original purpose of legislation and show that this purpose has
remained constant through successive amendments to the present. [Emphasis added.]

99 It is well established that the legislative evolution may be used to interpret a

statute as prior enactments may throw some light on the intention of the legisla-
ture in repealing, amending, replacing or adding to a statute: Ulybel Enterprises, at
para. 33; Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660,
at p. 667; Sullivan, at pp. 471–72.13

The Rationale and Methodology of Legislative Evolution

The rationale of evolution rests upon an examination of the differences or similarities
between prior wordings. By showing how a statute has been modified during its exist-
ence, profound clues may be drawn as to the drafter’s intent.
Suppose that several consecutive versions of a provision show a clear consistency in
wording, only to then receive a sudden amendment signifying a new legislative direc-
tion. A similar signal of intent would be offered by the addition of words on a point pre-
viously silent. The stronger the contrast with the prior text, the more weight given to the
change as an indicator of intent. Guidance need not always come from textual changes
however. In some contexts, consecutive versions can illuminate intent by showing that
a provision had, in fact, remained constant through successive amendments.
In terms of methodology, it is submitted that evolution will generally involve three
steps.14 First, one must find the origin of the provision under interpretation. A clear
starting point must be identified in order to then trace the provision’s subsequent evo-
lution (note also that some provisions may not be created by an earlier statute, but
come ultimately from the common law). Second, the meaning and significance of the
origin should be clearly established, to fully understand ‘the anchor on which subse-
quent analysis depends’.15
Finally, the interpreter will examine step-by-step how the particular provision
reached its present wording in the statute book. The significance of any changes will be
determined, with superficial differences separated from the substantive.

Legislative Evolution as Part of Context

The doctrinal justification for evolution stems from its provision of ‘context’. Gone are
the days when courts strictly look for the literal meaning of language. This purposive
approach now sees courts ‘prepared to look at much extraneous material that bears on
the background against which the legislation was enacted’.16 Modern courts, therefore,
construe statutory texts in light of what surrounds them, whether it be other contem-
porary statutes, or the social and political history existing at the time of a law’s passage.

13
Marche v. Halifax Insurance Co. [2005] 1 SCR 47, 2005 SCC 6.
14
Ruth Sullivan Sullivan on the Construction of Statutes (LexisNexis Canada Markham, Ontario 2008) 577.
15
Ibid 578.
16
Pepper v. Hart [1993] 1 All ER 42, 50.

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As words take colour from the circumstances of their use, an ambiguity may disap-
pear when properly situated. Mayor’s Office, by example, pointed to the proper inter-
pretation by placing section 2(1) into the context of a pre-existing trend of narrowing
compensation.
Few laws are made for the sake of their details, and courts should search for and defer
to their animating spirit when choosing amongst interpretations. As such, one scholar
has observed that ‘judicial attention to … legislative evolution may be justified less for
what it may say about specific legislative intentions, than for what it might suggest about
the reasons why a statute or amendment was enacted and the objects at which the stat-
ute or provision aims’.17 By illuminating the statutory background against which legisla-
tion was enacted, evolution may provide in guidance at two levels of generality. In some
instances, a series of prior amendments may strike at how the disputed words apply to
the very fact situation at hand. More commonly, however, evolution will merely reveal
the law’s overarching purpose. For example the evolution of prior acts may show a prior
deficiency which was remedied by the present provision. Ascertaining this spirit of the
act will allow the court to select the interpretation promoting such purpose.

The Presumption Underlying Legislative Evolution

Evolution operates on the presumption that changes to an enactment are made delib-
erately. Lord MacMillan wrote in D.R. Fraser & Co. Ltd. v. Minister of National Revenue
that when ‘an amending Act alters the language of the principal statute, the alteration
must be taken to have been made deliberately’.18 Lord Bingham similarly observed in
Quintavalla v. Secretary of State, that every statute ‘other than a pure consolidating stat-
ute is, after all, enacted to make some change, or address some problem, or remove
some blemish, or effect some improvement in the national life’.19
Such a presumption is sensible. Parliamentary resources are limited and a legislature
would hardly speak if there was no reason to do so. When the legislature troubles to
use different words in replacing a prior provision, the interpreter is entitled to draw
signals of intent from such change. Of course, intentional change is not always substan-
tive change. For instance a consolidation act is usually a mere codification of existing
legislation, with no meaningful amendment intended. Equally, other amendments may
simply be intended to modernize style rather than to change substance, or clarify exist-
ing rights rather than create new ones.20

Legislative Evolution Versus Legislative History

Having sketched the outline of legislative evolution, we pause to distinguish it from its
more illustrious cousin, legislative history. While both techniques share similarities as
external aids, certain differences justify their separate classification.
Legislative ‘evolution’ examines the text of prior enactments passed by Parliament.
In contrast, legislative ‘history’ looks to extrinsic materials which preceded the enact-
ment of a law, such as reports of Royal Commissions, White Papers, or ministerial
17
David G Duff, ‘Interpreting the Income Tax Act— Part 2: Toward a Pragmatic Approach’ [1999] CTJ 47(4), 741 at 758.
18
[1949] AC 24 (PC), 33.
19
[2003] UKHL 13, [2003] 2 AC 687.
20
Stéphane Beaulac Handbook on Statutory Interpretation: General Methodology, Canadian Charter and International
(LexisNexis Markham, Ontario 2008) 256.

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statements. The distinction between the two was articulated by the Supreme Court of
Canada as follows:

Legislative evolution consists of the provision’s initial formulation and all subse-
quent formulations. Legislative history includes material relating to the concep-
tion, preparation and passage of the enactment [citations omitted].21

Despite this distinction, evolution is too often subsumed within the concept of legisla-
tive history. Indeed, Lord Hodge in Mayor’s Office referred to the evolution of section
2(1) as ‘legislative history’.22 Similarly, Cross on Statutory Interpretation defines legisla-
tive history as including, ‘… the legislative antecedents of the statutory provision under
consideration, i.e. corresponding provisions in previous enactments since repealed and
re-enacted with or without modification[.]’23
Such treatment fails to reflect how the techniques differ in concept and reliability. As
Professor Ruth Sullivan has observed, evolution is confined to the four corners of previ-
ous enactments and consequently raises different considerations than those governing
ministerial statements or Hansard passages:

… the legislative evolution of a provision is not extrinsic to the legislative text;

rather, it consists of the text itself—or more precisely, the succession of enacted
texts in which the law has been embodied over time. This contrast with other
forms of legislative history, which express the opinion of participants in or com-
mentators on the legislative process or set out facts from which the intention of
legislative might be inferred.24

Legislative evolution, therefore, avoids certain potential weaknesses which can plague
legislative history, such as whether a given ministerial remark revealed Parliament’s col-
lective legislative intent, or was perhaps expressed merely for public consumption or
to reflect the intent of the individual speaker. With legislative history, the intent of the
government or a responsible minister cannot reliably be equated with the purpose of
Parliament itself. In contrast, rather than remarks made by one segment of the legis-
lature amongst many, evolution instead looks to text already blessed by the collective
assembly. To fail to distinguish the two techniques risks obscuring these differences.25

Admissibility and Weight
The central question regarding the use of legislative evolution in statutory interpreta-
tion should be one of weight but never admissibility. To make facial ambiguity a pre-
requisite for consideration would be an outdated ‘vestige of the plain meaning rule’.26

21
Canada (Canadian Human Rights Commission) v. Canada (Attorney General) [2011] SCC 53, [2011] 3 SCR 471, [43].
22
Mayor’s Office (n 1), [18].
23
John Bell and Sir George Engle (eds) Cross on Statutory Interpretation (3rd edn (Butterworths London 1995).
24
Sullivan (n 14), 577. Among published treatises on statutory interpretation, Professor Sullivan’s text contains the most thor-
ough and insightful analysis of evolution as an interpretative technique.
25
Ibid.
26
Sullivan (n 14) 576.

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Moreover, ambiguity is a conclusion reached at the end of interpretation and therefore

cannot be held up as a preliminary threshold test.27
No matter how plain certain statutory words may seem, reference to evolution
should always be available. Until read in context, a court cannot:

… decide whether or not any real doubt exists as to the meaning of a disputed
enactment (and if so how to resolve it) until it has first discerned and consid-
ered, in the light of the guides to legislative intention, the overall context of the
enactment, including all such matters as may illumine the text and make clear the
meaning intended by the legislator in the factor situation of the instant case.28

Concerns about relying on aids outside the four corners of the statute itself can be dealt
with through the twin considerations of relevance and reliability. Where text is already
clear on its face, any contrary meaning suggested by external legislative evolution will
be addressed as a matter of weight, balancing clarity of grammatical meaning versus a
purposive construction. Unless the evolution is exceptionally persuasive, plain statu-
tory text will often outweigh any special sense different than its ordinary grammatical
meaning.
Various factors will guide a court in determining the importance to attach to evolu-
tion on a case-by-case basis.29 The clearer the evidence of legislative change, the more
compelling the guidance. In some cases, a signal of intent may be unambiguous, as where
the legislature has substituted ‘may’ for ‘shall’ to clearly replace a duty with a discretion-
ary power. At other times the inferences offered by evolution may be more equivocal.
Weight will be diminished where one cannot readily conclude what was intended by
a textual revision. It may be that no change in the law was meant, as where an amend-
ment is adopted merely to clarify the existing law, to make explicit something previ-
ously implicit, or simply to polish language.30 In essence, as with any other interpretative
technique, evolution will on occasion lead nowhere. As Craies on Legislation observes:

27.1.14.3 Legislative history, as distinct from Parliamentary history, is often

alluded to in cases about statutory construction … but the results are often
inconclusive, particularly because … it will often be unclear to what extent if any
Parliament intended to depart from what went before, particularly in matters of
relatively small detail.31

27
Stéphane Beaulac ‘Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?’ [1998]
McGill Law Journal 43, 287, 322.
28
Bennion (n 3) 105.
29
See Lord Nicholls remarks on the weight given to extrinsic materials in R v. Secretary of State for the Environment, Transport
and the Regions Ex parte Spath Holme Ltd. [2000] UKHL 61; [2001] 1 All ER 195, 138.
30
The distinction between a change in wording versus a change in meaning is embodied in various interpretation acts through-
out the Commonwealth. For instance section 15 of the Australian Acts Interpretation Act 1901 (Cth) reads:
15AC Changes to style not to affect meaning
where:
(a) an Act has expressed an idea in a particular form of words; and
(b) a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer
style; the ideas shall not be taken to be different merely because different forms of words were used.
31
Daniel Greenberg Craies on Legislation (10th edn Sweet & Maxwell London 2012) 898.

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Even where evolution does evince a clear change in the law, the change may be periph-
eral to the specific ambiguity at issue. In short, any question of interpretation may raise
a number of aids to construction, some leading one way and others another. Evolution
will comprise but one of these factors, and will bow to those offering clearer guidance
in a specific circumstance.

Legislative Evolution as an Extrinsic Aid: Practical Concerns

Do questions of time and expense argue against the effort consumed in examining
prior acts? The answer is no. It is up to counsel to decide how much effort to invest in
research, but in any event consulting prior statutes will rarely add greatly to the cost of
litigation. Internet technology offers instant access to much previous legislation, pro-
viding the ability to search for keywords within seconds. Although made in the context
of legislative history, the following comments of Lord Griffiths still ring true:

I have to confess that on many occasions I  have had recourse to Hansard,

of course only to check if my interpretation had conflicted with an express
Parliamentary intention, but I  can say that it does not take long to recall
and assemble the relevant passages in which the particular section was dealt
with in Parliament, nor does it take long to see if anything relevant was said.
Furthermore if the search resolves the ambiguity it will in future save all the
expense that would otherwise be incurred in fighting the rival interpretations
through the courts.32

However, there is the second issue of whether citizens should need to go beyond plain
statutory text to a law’s evolution? The rule of law requires that citizens be able to know
the legal text by which they are regulated. Lord Diplock adverted to this concern in
Fothergill v. Monarch Airlines Ltd.:

The source to which Parliament must have intended the citizen to refer
is the language of the Act itself. These are the words which Parliament has
itself approved as accurately expressing its intentions. If the meaning of
those words is clear and unambiguous and does not lead to a result that
is manifestly absurd or unreasonable, it would be a confidence trick by
Parliament and destructive of all legal certainty if the private citizen
could not rely upon that meaning but was required to search through all
that had happened before and in the course of the legislative process in
order to see whether there was anything to be found from which it could
be inferred that Parliament’s real intention had not been accurately
expressed by the actual words that Parliament had adopted to communicate
it to those affected by the legislation.33

As such, using less accessible extrinsic materials can be contrary to legal certainty. In R
v. Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme

32
Mayor’s Office (n 1) 50.
33
[1981] AC 251, 279 (emphasis added).

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Ltd., Lord Nicholls advocated circumspection in allowing extrinsic materials ‘to dis-
place meanings which are otherwise clear and unambiguous’:

This constitutional consideration [that citizens should be able to rely upon what
they read in an Act of Parliament] does not mean that when deciding whether
statutory language is clear and unambiguous and not productive of absurd-
ity, the courts are confined to looking solely at the language in question in its
context within the statute. That would impose on the courts much too restrictive
an approach. No legislation is enacted in a vacuum. Regard may also be had to
extraneous material, such as the setting in which the legislation was enacted. This
is a matter of everyday occurrence.
That said, courts should nevertheless approach the use of external aids
with circumspection. Judges frequently turn to external aids for confirmation
of views reached without their assistance. That is unobjectionable. But the con-
stitutional implications point to a need for courts to be slow to permit external
aids to displace meanings which are otherwise clear and unambiguous and not
productive of absurdity. Sometimes external aids may properly operate in this
way. In other cases, the requirements of legal certainty might be undermined to
an unacceptable extent if the court were to adopt, as the intention to be imputed
to Parliament in using the words in question, the meaning suggested by an exter-
nal aid. Thus, when interpreting statutory language courts have to strike a
balance between conflicting considerations.34

Despite the tension between extrinsic aids and the need for reliability, the modern
emphasis on purposive interpretation has ultimately swung the balance in favour of
finding the true intention as expressed by Parliament. While one should indeed use
external aids with circumspection, courts are rightly prepared to look at extraneous
material where they will shed light on purpose, allowing the court to select the mean-
ing which best remedies the problem.
Moreover, evolution cannot be singled out as improperly problematic for either of
the above issues. Prior statutory versions will not typically give rise to issues of acces-
sibility. They are most often available in online form, for the world to see. Moreover,
most ordinary citizens ascertain their obligations through counsel, who are trained to
efficiently examine different sources of law—including prior statutory versions—in the
course of advising their clients.35 Ultimately, there would be no sound basis to prohibit
external resources like legislative evolution, and yet overlook the many other instances
in which courts go beyond a statute’s text. For example case law is often crucial to the
interpretation of statutory text, but is scarcely more immediately accessible to ordinary
citizens than prior versions of an act.

Subsequent Evolution
If a provision may be interpreted in light of its predecessor versions, may it also be inter-
preted in light of its successors? Suppose a court is tasked to determine the scope of a

34
[2000] UKHL 61, [2001] 1 All ER 195, 217 (emphasis added).
35
See the discussion in ‘Parliamentary Debates in Statutory Interpretation’ (n 27) 315.

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certain provision in force in 2010. In examining the statute, the court discovers that
there has been a subsequent broadening of the provision by an amendment passed in
2015. In determining the effect of the earlier 2010 enactment, what recourse could a
court have to the 2015 wording?
Two major approaches have developed in Commonwealth jurisprudence. The
first approach is exemplified by the Australian courts, which allow an amending stat-
ute to throw light on an earlier enactment. In the oft-cited decision of Deputy Federal
Commissioner of Taxes (SA) v. Elder’s Trustee and Executor Co. Ltd., the Australian High
Court said:

‘Where the interpretation of a statute is obscure or ambiguous, or readily capable

of more than one interpretation, light may be thrown on the true view to be taken
of it by the aim and provisions of a subsequent statute’ (per Lord Atkinson). In
Cape Brandy Syndicate v. Inland Revenue Comrs, Lord Sterndale said: ‘I quite
agree that subsequent legislation, if it proceed upon an erroneous construction
of previous legislation, cannot alter that previous legislation; but if there be any
ambiguity in the earlier legislation, then the subsequent legislation may fix the
proper interpretation which is to be put upon the earlier’ (citations omitted).36

The Australian reasoning appears to be that to refuse to consider an amending Act

might risk rendering the later statute unnecessary or futile.37
A divergent approach has emerged from Canadian decisions, with courts there
refusing to consider subsequent evolution. The Supreme Court of Canada has held as
follows:

What legal commentators call ‘subsequent legislative history’ can cast no light
on the intention of the enacting Parliament or Legislature. At most, subsequent
enactments reveal the interpretation that the present Parliament places upon the
work of a predecessor.38

Such reasoning assumes that later amendments—not present at the time of the crystal-
lization of the words in the statute—can merely reveal the interpretation of a subse-
quent Parliament on the work of a predecessor. In contrast, such reasoning assumes
that it is solely the judgement of the courts, and not lawmakers, that matters. Moreover,
Canadian courts suggest that to consult subsequent legislative versions could give
the later enactments retroactive effect (impacting duties or rights which had already
accrued prior to the legislation in question).39
In England, early decisions supported the use of subsequent evolution. For instance
in Attorney-General v. Clarkson, Sir Francis Jeune said:

36
[1937] ALR 27 (HCA), 32.
37
See for instance Grain Elevators Board (Vic) v. Dunmunkle Corporation [1946] 73 CLR 70, 86.
38
United States v. Dynar [1997] 2 SCR 462, [45].
39
Ibid at [46]. In the Canadian context, this prohibition on subsequent evolution is based in part on section 45(3) of the
Interpretation Act, R.S.C., 1985, c. I-21, which declares:
The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declara-
tion as to the previous state of the law.

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But, having regard to that Act, it seems to me that it is impossible for us to take any
other view of the construction of s 5 than that which, in my opinion, the Legislature
have imposed upon us. Our duty is to interpret the meaning of the Legislature, and
if the Legislature in one Act have used language which is admittedly ambigu-
ous, and in a subsequent Act have used language which proceeds upon the
hypothesis that a particular interpretation is to be placed upon the earlier Act,
I think the judges have no choice but to read the two Acts together, and to say
that the Legislature have acted as their own interpreters of the earlier Act.40

More recent consideration of the question came in R (on the application of Jackson and
others) v. Attorney General.41 In his judgement, Lord Nicholls considered the interpreta-
tive guidance offered by Parliament’s subsequent use of certain 1949 amendments to
the Parliament Act 1911. Lord Nicholls regarded evidence of the subsequent ‘general
understanding’ of Parliament, reflected in the conduct of legislative business over half a
century, as a ‘strong pointer’. However, Lord Nicholls made clear that a particular subse-
quent interpretation of earlier legislation does not preclude the courts from ruling the
later parliamentary understanding to be mistaken.42
In separate reasons, Lord Carswell also permitted use of subsequent legislative evo-
lution, holding that a consistent Parliamentary interpretation could offer ‘reinforce-
ment of one’s construction of legislation’:

The extent to which use may be made of subsequent events is less clear cut, but
at its lowest one may obtain reinforcement of one’s construction of legislation
from the fact that the same interpretation has been adopted over a considerable
period. That is not to say that the courts may not reverse a long-held error of
interpretation, if satisfied that it is right to do so.43

The question of subsequent evolution arose the next year in Isle of Anglesey County
Council v. Welsh Ministers.44 There Carnwath LJ (as he then was) found no settled view
as to the permissible use of subsequent legislative evolution under English law.
On the facts before him, Carnwath LJ ultimately held it permissible to take account
of subsequent evolution determining the vires of certain orders made under the Sea
Fisheries Act 1868. He examined later orders approved by Parliament under the 1868
Act, as well as Parliament’s passage of a 1967 Act with knowledge of these extant orders.
While Carnwath LJ ultimately endorsed subsequent evolution, he did so not as
much for any ability to reinforce interpretative signals of intent, but on the basis of reli-
ance interests:

It is unnecessary in my view to attempt a general reconciliation of these vari-

ous conflicting strands of authority or to explore the full breadth of the princi-
ple which they illustrate. My own respectful view is that Lord Blackburn’s more

40
[1900] 1 QB 156, 165 (emphasis added).
41
[2005] UKHL 56.
42
See Birmingham City Corp v. West Midland Baptist (Trust) Association (Inc) [1969] 3 All ER 172, [1970] AC 874, 898.
43
Ibid [171].
44
[2009] EWCA Civ 94, [2009] 3 All ER 1110.

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liberal view is supported by considerations of common sense and the principle

of legal certainty. Where an Act has been interpreted in a particular way with-
out dissent over a long period, those interested should be able to continue
to order their affairs on that basis without risk of it being upset by a novel
approach. That applies particularly in a relatively esoteric area of the law such as
the present, in relation to which cases may rarely come before the courts, and the
established practice is the only guide for operators and their advisers.45

English law, therefore, lacks any ‘consistent or settled view’46 of the use of subsequent
evolution. The issue is therefore ripe for re-examination in light of the divergent
approach discussed above. This author suggests that the Australian position is ulti-
mately to be preferred, if for no other reason than that it avoids the illogical result of
rendering an amending legislation futile. Recourse to subsequent amendments reflects
the simple reality that where:

… a legislature has subsequently made particular provision to cover relevant

events or circumstances [it] may provide an indication that the legislation as ear-
lier enacted was not intended to cover those events or circumstances at an earlier
time.47

However, a more difficult question arises where an earlier provision had already been
judicially interpreted, but only then receives amendment which suggests another inter-
pretation. In such case, a court should be extremely loath to retrospectively revise a
settled construction on nothing more than guidance offered by later amendments.

CO N C LU S I O N
In our modern age of purposive and contextual interpretation, evolution can offer per-
suasive guidance in ascertaining Parliament’s intent. Within the theoretical framework
of statutory interpretation, the role of evolution rests in its ability to place a provision
in its context. When Parliament alters a statute, it does so for some intelligible purpose,
whether to clarify meaning, correct a mistake, or change the law. Examination of such
prior interventions may, therefore, indicate the background and purpose of the present
wording.
The methodology of evolution will look first to the genesis of an ambiguous provi-
sion. Once the origin is understood, the interpreter will trace each step in the develop-
ment of the provision. While evolution is extrinsic by virtue of looking outside the
four corners of the enactment under interpretation, it avoids certain frailties inherent
in other external interpretative aids, such as legislative history. Rather than relying on
remarks which too often may only represent the intent of the government or a single
Minister, evolution looks to text already known to represent the will of the legislature.
In terms of practical usage, the material required by evolution is also often publi-
cally available, something not always true of legislative history. As with any other

45
Ibid [43] (emphasis added).
46
Ibid [40].
47
Commissioner of State Revenue v. Pioneer Concrete (Vic) Pty Ltd. [2002] HCA 43, 54.

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external aid, it is the court who will ultimately weigh the guidance offered by evolution.
Where changes are of a superficial, equivocal, or peripheral nature, little persuasive-
ness will attach. While weight may vary, however, threshold admissibility should not.
Courts should always stand ready to consider prior versions, even where a provision
appears clear on its face. While it starts with the words, a search for intent must not end
with them.
Ultimately, modern statutory interpretation requires that a text be interpreted
within its wider setting.48 By placing ambiguous words against the backdrop of their
predecessors, prior changes may illustrate a fixed and unchanging intent, or perhaps
instead show that a material change was intended. In so doing, valuable insight will
come from an enactment’s prior lineage. While evolution may not always provide the
interpretative ‘crock of gold’,49 as Mayor’s Office illustrates, it may well yield sufficient
carats to tip the scales of justice to one side.50

48
Bennion (n 3) 106.
49
This phrase was used by Lord Browne Wilkinson in Pepper v. Hart [1993] 1 All ER 42, 67. He there described counsels’
search through parliamentary materials for the ‘crock of gold, i.e., a clear indication of Parliament’s intentions’.
50
See ‘Parliamentary Debates in Statutory Interpretation’ (n 27) 324, where the author used this metaphor to describe the
insight offered by legislative history.

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