Using explanatory notes and Law Commission reports as aids to interpretation (R (O) v SSHD)
In a 2026 claim in the High Court, the parties disagree about the meaning of a phrase in section 9 of a 2021 Act of Parliament. Counsel for the claimant, Femi Adebayo, wishes to rely on two documents: the Explanatory Notes published with the Act, and a Law Commission report which recommended the reform the Act was passed to make. Counsel for the defendant argues that neither document can be looked at unless the phrase is first shown to be ambiguous.
Which of the following best describes the use the court may make of these documents?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: The court may use both as context for the section's meaning and purpose, even absent ambiguity, but they cannot displace a clear meaning that is not absurd.
THE RULE TO REMEMBER
External aids such as explanatory notes and Law Commission reports may be used as context whether or not there is ambiguity, but cannot displace a clear, unambiguous and non-absurd meaning of the words.
Using explanatory notes and Law Commission reports as aids to interpretation (R (O) v SSHD)
In R (O) v Secretary of State for the Home Department [2022] UKSC 3, Lord Hodge explained that the words of the statute, read in their context, are the primary source of meaning, and that external aids play a secondary role. Explanatory notes may cast light on the meaning of particular provisions, and materials such as Law Commission reports may disclose the background, helping the court identify the mischief and purpose of the legislation and so assisting a purposive interpretation. Crucially, this context is relevant whether or not there is ambiguity or uncertainty, and may itself reveal ambiguity. But none of these external aids can displace the meaning conveyed by the statutory words if, after considering that context, the words are clear and unambiguous and do not produce absurdity. So the court may look at both documents, but they cannot override a clear meaning.
Why A is wrong: The ambiguity threshold comes from the special rules on Hansard (Pepper v Hart); R (O) says other external aids may be used whether or not there is ambiguity.
Why B is wrong: Explanatory notes are not part of the Act and are not binding; they are an aid of secondary weight, and Law Commission reports may also be used.
Why C is wrong: External aids need not be approved by Parliament to be admissible; R (O) expressly permits their use as context.
Why D is wrong: R (O) treats explanatory notes as capable of casting light on the meaning of particular provisions, so they are not excluded.
A little more practice done.
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