Attorney-General v HRH Prince Ernest Augustus of Hanover
[1957] AC 436[1957] 1 All ER 49
[1957] WLR 1
(Judgment by: Lord Somervell of Harrow)
Attorney-General
vHRH Prince Ernest Augustus of Hanover
Judges:
Viscount Simonds
Lord Normand
Lord Morton of Henryton
Lord Tucker
Lord Somervell of Harrow
Subject References:
Alien
British nationality
Lineal descendant of Electress Sophia
4 Anne c 4 or 4
&
5 Anne c 16
British Nationality Act, 1948 (11
&
12 Geo 6 c 56), s 12.
Statute
Construction
Preamble
Acts in pari materia
Ex post facto inconvenience or absurdity
Whether clear en-acting words restricted
4 Anne c 4 or 4
&
5 Anne c 16.
Case References:
Powell v Kempton Park Racecourse Co Ltd - [1899] AC 143
Cape Brandy Syndicate v Inland Revenue Comrs - [1921] 2 KB 403
Ormond Investment Co v Betts - [1928] AC 143
Brett v Brett - (1826) 3 Add. 210
Crespigny v Wittenoom - 1792 4 Term Rep 790
Suggested reading:
Hearing date: 22, 23, 24, 25, 29, 30 October 1956
Judgment date: 5 December 1956
Judgment by:
Lord Somervell of Harrow
My Lords, your Lordships were referred to a number of statements in speeches or judgments dealing with the construction of statutes. There are, I think, two distinct subject-matters dealt with in the passages to which reference was made. In the first place, it was necessary to decide what can, or cannot, be invoked and relied on by either party in support of its case outside the words of the Act itself. It seems now clear that the "intent of the Parliament which passed the Act" is not to be gathered from the Parliamentary history of the statute. The mischief against which the Act is directed and, perhaps, though to an undefined extent, the surrounding circumstances can be considered. Other statutes in pari materia and the state of the law at the time are admissible.
"... 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."
(Lord Sterndale MR in Cape Brandy Syndicate v Inland Revenue Comrs ([1921] 2 KB 403 at p 414), cited and approved by Lord Buckmaster in Ormond Investment Co v Betts ([1928] AC 143 at p 156)). These are properly called rules. They apply in all cases to determine what can, and cannot, be referred to and relied on. The above list is not intended to be either exhaustive or precise, but to mark the distinction between rules as to admissibility and the solution of the problems which arise when one turns to the actual words of the Act.
A question of construction arises when one side submits that a particular provision of an Act covers the facts of the case and the other side submits that it does not. Or it may be agreed it applies, but the difference arises as to its application. It is unreal to proceed as if the court looked first at the provision in dispute without knowing whether it was contained in a Finance Act or a Public Health Act. The title and the general scope of the Act constitute the background of the contest. When a court comes to the Act itself, bearing in mind any relevant extraneous matters, there is, in my opinion, one compelling rule. The whole, or any part, of the Act may be referred to and relied on. It is, I hope, not disrespectful to regret that the subject was not left where Sir John Nicholl left it in 1826.
"The key to the opening of every law is the reason and spirit of the law--it is the animus imponentis, the intention of the law-maker, expressed in the law itself, taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed detached from its context ... meaning by this as well the title and preamble as the purview or enacting part of the statute--"
(Sir John Nicholl in Brett v Brett (1826), 3 Add. 210 at p 216). He proceeds in the next sentence to attach in that case special importance to the preamble. We were referred to other statements minimising the importance of the preamble. For example, Buller J in Crespigny v Wittenoom ((1792), 4 Term Rep 790 at p 793):
"I agree that the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms. But if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it."
The word "unambiguous" must mean unambiguous in their context. The words "a marriage" are not ex facie ambiguous. In one statutory context they mean a marriage celebrated in England, and in another a marriage wherever celebrated. Many local Acts have their geographical limits set out in their preambles and title. I take an example at random. 8 & 9 Vict c 22 is an "Act to enable the Commissioners of Greenwich Hospital to widen and improve Fisher Lane in Greenwich". If that Act had contained in the enacting provisions words which in isolation might have applied outside Greenwich, the preamble would control their meaning. If, however, having read the Act as a whole, including the preamble, the enacting words clearly negative the construction which it is sought to support by the preamble, that is an end of it.
It is also said that the court cannot look at a preamble to find an ambiguity. Lord Davey's statement in Powell v Kempton Park Racecourse Co Ltd ([1899] AC 143 at p 185) is relied on. He said "that you must not create or imagine an ambiguity in order to bring in the aid of the preamble". I find it difficult to believe that Lord Davey was intending to create an exception to the rule that an Act, like other documents, must be considered as a whole. Preambles differ in their scope and, consequently, in the weight, if any, which they may have on one side or the other of a dispute. There can be no rule. If, in an Act, the preamble is a general and brief statement of the main purpose, it may well be of little, if any, value. The Act may, as has been said, go beyond or, in some respects, fall short of, the purpose so briefly stated. Most Acts contain exceptions to their main purpose, on the meaning of which such a preamble would presumably throw no light. On the other hand, some general and most local Acts have their limits set out in some detail. I will not hazard an example, but there may well be cases in which a section, read with the preamble, may have a meaning different from that which it would have if there were no preamble. A court will, of course, always bear in mind that a preamble is not an enacting provision, but I think it must have such weight as it can support in all contests as to construction.
Coming to the Act, I therefore accept the Attorney General's submission that the preamble and enacting words should be read before deciding whether the latter are reasonably capable of the meaning which the Attorney General seeks to place on them. I do not think that they are. The words "all Persons lineally descending from Her born or hereafter to be born", in my opinion, clearly negative any intention to limit the effect of the Act to those born in Queen Anne's lifetime. Whether the words are regarded as general or specific, they could not have been used if the Act was to be limited to those born in Queen Anne's lifetime.
The preamble is, perhaps, ambiguous, but the phrasing would, I think, have been different if the intention had been that submitted by the Attorney General. If one goes through the words, having in mind an intention of naturalising in addition to those now living only those future descendants born in Queen Anne's lifetime, the words "all Persons lineally descending from Her" would clearly have been so qualified. Instead of the word "they" one would have had some such words as "those now living and those born hereafter in Your Majesties Life time". There is also, I think, force in the argument for the respondent that "naturalized" refers to the Act of Parliament, and the later words express its effect. This is supported by the fact that the word "naturalized" does not occur in the enacting words. It is sufficient if the preamble is ambiguous. On consideration, I am clear that it does not bear the meaning submitted by the Attorney General.
I have nothing I wish to add on the other points raised and I would dismiss the appeal.