Mr Justice Sales:
Introduction
- Part II of the Immigration and Asylum Act 1999 ("the 1999 Act"), entitled "Carriers' Liability", sets out a regime under which the Secretary of State can impose civil penalties in the form of monetary fines on a carrier whose vehicle, on passing through United Kingdom border control, is found to contain clandestine entrants to the United Kingdom (that is, people who are hiding in the vehicle in an attempt to evade immigration control and enter the United Kingdom without permission). The object of the regime is to encourage carriers, such as lorry drivers, not to transport clandestine entrants into the United Kingdom and to exercise care to ensure that there are no clandestine entrant stowaways hidden in their vehicles when they come to the United Kingdom from abroad.
- Since Part II of the 1999 Act was brought into force in 2000, United Kingdom border controls have been established at certain designated immigration control zones outside United Kingdom territory, in France. The first immigration control zone was established at Coquelles. In 2004 three other immigration control zones were established, at Calais, Boulogne and Dunkirk.
- This case concerns the operation of the carriers' liability regime in relation to the immigration control zones in France. This is the judgment in the trial of a preliminary issue which arises on the appeal by Mr Bogdanic against certain civil penalty charges imposed by the Secretary of State in relation to clandestine entrants who were found hiding in his lorry. The Secretary of State says that in an inspection on 16 September 2011, three clandestine entrants were found hiding in a lorry driven by Mr Bogdanic in the immigration control zone at Dunkirk.
- The Secretary of State gave notice of imposition of a civil penalty under Part II of the 1999 Act, as amended by section 125 of and Schedule 8 to the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The amendments to the 1999 Act pursuant to the 2002 Act took effect on 8 December 2002, by virtue of being brought into effect on that day by the Nationality, Immigration and Asylum Act 2002 (Commencement No. 1) Order 2002 (SI 2002/2811) ("the Commencement Order"). The preliminary issue on the appeal concerns the proper interpretation of the Commencement Order.
- The Secretary of State imposed a penalty on Mr Bogdanic personally of £75 per clandestine entrant and a penalty on the company which owned the lorry of £250 per clandestine entrant. The Secretary of State imposed these penalties on the basis that Part II of the 1999 Act had been effectively amended by the 2002 Act both in relation to the application of Part II in the territory of the United Kingdom and in relation to its application in the immigration control zones in France.
- Mr Bogdanic appeals against these penalties to the County Court. An important point of law arising on the appeal has been identified and the case has been transferred to the High Court for that point of law to be determined.
- Mr Bogdanic is not currently taking any substantive part in the proceedings, but Mr Nicholls QC has been appointed as Advocate to the Court to assist with legal submissions in opposition to those made on behalf of the Secretary of State.
- The point of law which has been identified relates to the effect of the Commencement Order. It has been noticed that the relevant part of the Commencement Order which brought the 2002 Act amendments to Part II of the 1999 Act into effect is poorly drafted. An issue arises whether it was effective to bring those amendments into effect not just in relation to the carriers' liability regime as it applies to the territory of the United Kingdom (which it clearly was), but also in relation to immigration control zones in France. Mr Nicholls presents an argument that the Commencement Order did not achieve the commencement of those amendments in relation to those immigration control zones. If correct, that argument would assist Mr Bogdanic in his appeal.
- By an order dated 13 March 2014, Green J ordered that there should be a trial of this point of law as a preliminary issue in the appeal. In his order, the preliminary issue is identified as follows:
"whether the interpretative approach set out in Inco Europe Ltd v First Choice [2000] 1 WLR 586, HL, should be applied to the [Commencement Order] so that section 125 of and Schedule 8 to the 2002 Act should be held to have come into force from 8th December 2002 for the purpose of clandestine entrants who pass, or attempt to pass, through immigration control concealed in a vehicle."
- Under the interpretative approach in Inco Europe, a court may be permitted in certain very limited circumstances to adopt an interpretation of a legislative provision which has the practical effect of rectifying a defect in its drafting. In this case, the Secretary of State maintains that the circumstances surrounding the promulgation of the Commencement Order are such that it is appropriate for the relevant part of it to be interpreted so as to cover the immigration control zones in France as well as United Kingdom territory, pursuant to the guidance in Inco Europe. Mr Eadie QC, for the Secretary of State, submits that this means that the Commencement Order was effective to bring the amendments to the 1999 Act under the 2002 Act into force in relation to clandestine entrants found in a vehicle in an immigration control zone in France.
- Mr Nicholls QC, as Advocate to the Court, presents the opposing argument. He submits that the Commencement Order cannot properly be given such a rectified interpretation by the court. He says that this means that there was no lawful basis for the civil penalties to be imposed in this case.
- The Secretary of State filed evidence in relation to the preliminary issue in the form of a witness statement of Susan Wale of the Home Office, dated 9 June 2014. Ms Wale provides information about the background to the enactment of the 1999 Act, the 2002 Act, the making of the Commencement Order and the operation of the carriers' liability regime contained in Part II of the 1999 Act. Since the preliminary issue is an issue of law, turning on the proper interpretation to be given to the Commencement Order, it was not necessary for Ms Wale to give oral evidence. Her evidence was unchallenged.
- However, to a significant degree, Ms Wale's evidence was irrelevant to the issue of interpretation of the Commencement Order which the court has to determine. Ms Wale set out the background and internal departmental documents which made it clear that the policy intention of the Secretary of State when introducing the 2002 Act amendments of the 1999 Act and then commencing those amendments by the Commencement Order was indeed to continue the application of the carriers' liability regime in relation to immigration control zones in France, as well as in relation to United Kingdom territory. But in construing a legislative instrument such as the Commencement Order, just as in construing a legislative instrument in the form of an Act of Parliament, it is a basic constitutional principle that the citizen or person subject to the relevant law should have the means of access to any material which is said to provide an aid to construction of that instrument. It is only material which is in the public domain and of clear potential relevance to the issue of interpretation of a legislative instrument which can be treated as having any bearing on the proper construction of that instrument: see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 614A (Lord Reid), 638D-H (Lord Diplock) and 645C-H (Lord Simon of Glaisdale); Fothergill v Monarch Airlines Ltd [1981] AC 251, 279F-280B (Lord Diplock: "
the need for legal certainty demands that the rules by which a citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible
"); and R (Public and Commercial Services Union) v Minister for the Civil Service [2010] EWHC 1027 (Admin); [2010] ICR 1198, [53]-[55]. The subjective policy intent of the Secretary of State or of those in his or her department is irrelevant to the question of interpretation before the court.
The Legislative Context
- Part II of the 1999 Act established a carriers' liability regime involving the imposition of financial penalties on carriers found with clandestine entrants concealed in their vehicles when passing through United Kingdom immigration control, regardless of the culpability of the carrier for the hidden presence of those entrants.
- Section 32 of the 1999 Act, as originally enacted, provided in relevant part as follows:
"32 (1) A person is a clandestine entrant if -
(b) he passes, or attempts to pass, through immigration control concealed in a vehicle
and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.
(2) The person (or persons) responsible for a clandestine entrant is (or are together) liable to
(a) a penalty of the prescribed amount in respect of the clandestine entrant; and
(b) an additional penalty of that amount in respect of each person who was concealed with the clandestine entrant in the same transporter.
(10) 'Immigration control' means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom."
- Part II of the 1999 Act was brought into force on 3 April 2000, at the same time as a Code of Practice for Vehicles made under section 33 of the 1999 Act ("the 1999 Code of Practice") and the Carriers' Liability (Clandestine Entrants and Sale of Transporters) Regulations 2000 ("the 2000 Regulations").
- The 1999 Code of Practice was issued as a code to be followed by any person operating a system for preventing the carriage of clandestine entrants (section 33(1) of the 1999 Act), which was relevant to the availability of a defence for a carrier under section 34(3) of the 1999 Act if he could show that he had been operating an effective system to prevent the carriage of clandestine entrants.
- Amongst other things, the 2000 Regulations prescribed the amount of the penalty referred to in section 32(2) at an amount of £2000 (regulation 2) and designated Coquelles as what was then the only prescribed control zone for the purposes of section 32(10) (regulation 5). By virtue of section 35(8) of the 1999 Act, the Secretary of State was the ultimate arbiter of whether a penalty should be paid by a carrier.
- It was thus clear from section 32 of the 1999 Act and the 2000 Regulations that a clandestine entrant was defined as a person seeking in defined circumstances to evade immigration control, including immigration control in a prescribed control zone, and that a penalty in a fixed amount would be payable by a carrier in respect of such a clandestine entrant hidden in his vehicle.
- The application of the carriers' liability regime to the immigration control zone at Coquelles was also apparent from the terms of the 1999 Code of Practice. Section 1.2 of that Code of Practice was headed, "Measures to be taken immediately prior to the vehicle boarding the ship, aircraft or train to the United Kingdom, or before arrival at the UK immigration control at Coquelles."
- The compatibility of the carriers' liability regime in Part II of the 1999 Act (as originally enacted) with Convention rights under the Human Rights Act 1998 was challenged in the case of International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158; [2003] QB 728. The Court of Appeal held that the liability regime was to be classified as a criminal law regime rather than a civil regime for the purposes of Article 6 of the European Convention on Human Rights ("ECHR"); that the scale and inflexibility of the penalty without the possibility of mitigation or the right for the penalty to be determined by an independent tribunal were factors which made the scheme unfair and in breach of Article 6; and that, further, the regime imposed an excessive burden on carriers which was disproportionate to the objective to be achieved and was in breach of Article 1 of Protocol 1 to the ECHR ("A1P1").
- Amendments to the 1999 Act designed to meet the points of incompatibility identified by the Court of Appeal in International Transport Roth were introduced by section 125 of and Schedule 8 to the 2002 Act. Amongst other things, a right of appeal to a court in respect of a penalty was introduced (section 35A) and a substitute subsection (2) and a new subsection (2A) were inserted into section 32 of the 1999 Act, as follows:
"(2) The Secretary of State may require a person who is responsible for a clandestine entrant to pay
(a) a penalty in respect of the clandestine entrant;
(b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter.
(2A) In imposing a penalty under subsection (2) the Secretary of State
(a) must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,
(b) may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and
(c) may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph."
- The 2002 Act also introduced a new section 32A, which required the Secretary of State to issue a code of practice specifying matters to be considered in determining the amount of a penalty under the new discretion as to level of penalty introduced by the amendments to section 32.
- The 2002 Act did not alter section 32(1) in any material respect. It also left section 32(10) unchanged.
- The 2002 Act left sections 33 and 34 of the 1999 Act in place, with certain amendments which are not material for present purposes. The 1999 Code remained in place throughout, and was not revoked.
- Section 125 of and Schedule 8 to the 2002 Act (i.e. the provisions amending Part II of the 1999 Act) were brought into force on 8 December 2002 by means of the Commencement Order. On the same day, the Carriers Liability Regulations 2002 ("the 2002 Regulations") came into force. These were promulgated by the Secretary of State in exercise of his powers under various provisions of the 1999 Act, as amended, including section 32(2A) and (10).
- Regulation 15 of the 2002 Regulations provided that the 2000 Regulations "are hereby revoked". Thus, along with other provisions in the 2000 Regulations, regulation 2 of those Regulations which had been the provision which stipulated the amount of the penalty to be imposed on a carrier pursuant to section 32(2) of the 1999 Act, as originally enacted was revoked. In its place, section 32(2A) of the 1999 Act (as amended) now provided the relevant cross-reference to a prescribed maximum penalty, and regulation 3 of the 2002 Regulations set out the relevant prescribed amounts as £2000 for the purposes of section 32(2A)(a) and £4000 for the purposes of section 32(2A)(c).
- Regulation 5 of the 2002 Regulations re-enacted regulation 5 of the 2000 Regulations in the same terms, again designating Coquelles as an immigration control zone for the purposes of section 32(10) of the 1999 Act. It is relevant to note here that the only possible relevance in the context of Part II of the 1999 Act (as amended) of designating Coquelles in this way was to give extended effect to the carriers' liability regime by reference to attempts by clandestine entrants to evade United Kingdom immigration control at a prescribed immigration control zone in France. In the context of the 1999 Act (as amended) and the 2002 Regulations, regulation 5 of those Regulations had no other point to it.
- Also on 8 December 2002, by virtue of the Carriers' Liability (Clandestine Entrants) (Level of Penalty: Code of Practice) Order 2002, a Code of Practice issued by the Secretary of State regarding the level of penalty ("the 2002 Code of Practice") was brought into effect, pursuant to the new section 32A of the 1999 Act. Like the 1999 Code of Practice, the 2002 Code of Practice included statements which indicated that the carriers' liability regime applied in relation to attempts to evade immigration control at a prescribed immigration control zone in France as well as on United Kingdom territory. At various places it was stated that a factor relevant to determining the level of penalty was the extent to which the relevant person subject to the penalty regime "knew, or had reasonable grounds for suspecting, that a clandestine entrant was, or might have been, concealed in the vehicle prior to boarding the ship or train to the United Kingdom, or before arrival at the UK immigration control at Coquelles."
- The Commencement Order in respect of the 2002 Act was made by the Secretary of State in exercise of the powers conferred on him by section 162(1) and (6) of that Act. It was not subject to either the positive or the negative resolution procedure in Parliament. Article 2 of the Order provides:
"2. The provisions of the 2002 Act specified in column 1 of the Schedule to this Order shall come into force on the date specified in column 2 of that Schedule but where a particular purpose is specified in relation to any such provision in column 3 of that Schedule, the provision concerned shall come into force on that date only for that purpose."
- In relation to the provisions regarding the carriers' liability regime contained in section 125 of and Schedule 8 to the 2002 Act, the Schedule to the Commencement Order stipulated that they were to come into force on 8 December 2002, i.e. along with the 2002 Regulations and the 2002 Code of Practice, as a raft of new measures all commencing on that date. Column 3 of the Schedule to the Commencement Order contained this text in relation to those provisions:
"For the purposes of clandestine entrants (within the meaning of section 32(1) of the 1999 Act) who arrive in the United Kingdom concealed in a vehicle or a rail freight wagon."
- The possibility that the Commencement Order might have been framed too narrowly, in that it did not refer to arrival at an immigration control zone, was first recognised in 2012. The Secretary of State then introduced a further Order, the Nationality, Immigration and Asylum Act 2002 (Commencement No. 13) Order 2012 (SI 2012/1263), to make it clear that the 2002 Act amendments of the 1999 Act were commenced in relation to immigration control zones as well. This was done out of an abundance of caution and without prejudice to the argument presented by Mr Eadie on the preliminary issue.
The Preliminary Issue
- The preliminary issue for trial before me concerns the proper construction of the quoted text in the Schedule to the Commencement Order. It is not in dispute that the carriers' liability regime in Part II of the 1999 Act (as amended) pursues a legitimate objective, namely seeking to achieve an effective regime for enforcement of immigration controls, including in relation to those seeking to enter the United Kingdom clandestinely by hiding in vehicles entering the country. It is also not suggested that the operation of the regime, as amended by the 2002 Act in light of International Transport Roth, is disproportionate to that objective or incompatible with Convention rights under the Human Rights Act 1998. The issue between the parties concerns the appropriateness or otherwise of the Court adopting a rectifying interpretation of the Commencement Order pursuant to the principle in Inco Europe.
- On a literal reading, the Commencement Order only brought the 2002 Act amendments of Part II of the 1999 Act into force in relation to clandestine entrants arriving on United Kingdom territory concealed in a vehicle or rail freight wagon. But should a rectifying interpretation be given to the Commencement Order, on the basis of the principle in Inco Europe, so that it has effect to bring those amendments into force in relation to clandestine entrants arriving in a prescribed immigration control zone as well?
- Mr Eadie submits that the surrounding circumstances in which the Commencement Order was promulgated indicate so clearly that the intention was to bring the 2002 Act amendments of the carriers' liability regime into force both in relation to attempts by clandestine entrants to evade United Kingdom immigration control on United Kingdom territory and in relation to such attempts in respect of immigration control in a prescribed immigration control zone that, following Inco Europe, this is an appropriate case for the Court to supply a rectifying interpretation of the Commencement Order to give it that effect.
- Mr Nicholls presents the opposing argument. He submits with great force that in the context of a penal regime such as that contained in Part II of the 1999 Act it would be quite wrong for the Court to supply a rectifying interpretation of the Commencement Order to remedy a defect in the Secretary of State's own drafting, so as to have the effect of making that regime applicable in relation to attempts to enter not only the United Kingdom but also an immigration control zone in France. Further, Mr Nicholls submits that imposition of a penalty in relation to Mr Bogdanic in the circumstances of this case would involve a violation of his rights under A1P1, on the grounds that it would violate the requirement of lawfulness inherent in that provision. As the Grand Chamber of the European Court of Human Rights observed in Broniowski v Poland (2005) 40 EHRR 21 at para. [147], the principle of lawfulness inherent in A1P1 "presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application." Mr Nicholls says that these requirements will not be satisfied if the Court supplies a rectifying interpretation of the Commencement Order pursuant to Inco Europe. This is another reason why the Court should not adopt such an interpretation.
Discussion
- In Inco Europe, the House of Lords was confronted with an issue on the interpretation of an amendment of section 18(1)(g) of the Supreme Court Act 1981 made by the Arbitration Act 1996. The question was whether that provision, as amended, conferred jurisdiction on the Court of Appeal to entertain an appeal against the grant or refusal of a stay in favour of arbitration. Read literally, the provision appeared not to confer such jurisdiction. However, the House of Lords unanimously held that the sole object of the amendment had been to substitute a new paragraph (g) serving the same purpose as the original paragraph had done in relation to the Arbitration Act 1979 (which did confer such jurisdiction), and that although the draftsman had not used language apt to achieve the intention of the legislature, it was permissible to read words into the amended section 18(1)(g) to give effect to that intention.
- Lord Nicholls gave the leading speech. In the critical passage of the speech, he said this (at [2000] 1 WLR 586, 592C-593A):
"I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation, 3rd ed., pp. 93-105. He comments, at page 103:
'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.'
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74, 105. In the present case these three conditions are fulfilled.
Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler [1977] Ch 1, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case. Here, the court is able to give effect to a construction of the statute which accords with the intention of the legislature."
- That the approach in Inco Europe may be applied if the court "can be confident of the gist or substance of the alteration, rather than its precise meaning" was further confirmed in Pollen Estate Trustee Co. Ltd v Revenue and Customs Commissioners [2013] EWCA Civ 753; [2013] 1 WLR 3785, at [49] per Lewison LJ.
- The same principles of construction apply in relation to construction of subordinate legislation such as the Commencement Order: R (Confederation of Passenger Transport UK) v Humber Bridge Board [2003] EWCA Civ 842; [2004] QB 310 at [33]-[36] per Clarke LJ.
- It is important to emphasise that Inco Europe states a principle of interpretation of a legislative instrument. Effect is to be given to the intention of the legislator, as expressed in the instrument as objectively construed in accordance with the principles identified in cases such as Black-Clawson International and Fothergill, supra, and R v Secretary of State for the Environment, Transport and the Regions, ex p. Spath Holme Ltd [2001] 2 AC 349, especially at 396F-399E per Lord Nicholls. As Lord Nicholls there observed (at 397G), although it is legitimate to have regard to certain aids to interpretation of legislation which are external to the legislation itself, "This gives rise to a tension between the need for legal certainty, which is one of the fundamental elements of the rule of law, and the need to give effect to the intention of Parliament, from whatever source that (objectively assessed) intention can be gleaned."
- For the purposes of the principle in Inco Europe, it is only if the legislative instrument has a clear, objectively assessed meaning, having regard to all the circumstances and all indicators of the legislator's intention available to the person subject to the law (assisted as necessary by his legal advisers), and that meaning is contrary to the literal meaning of the text of the instrument, that it will be appropriate for the Court to give a rectifying interpretation to the instrument. Given the primacy ordinarily to be given to the language used in a legislative instrument as an indicator of the legislator's intention, the countervailing objective indicators that, despite the language used, the legislator's intention was different need to be very strong, as Lord Nicholls emphasised in Inco Europe. It must be clear that the true intention of the legislator, objectively assessed, was different from the language used by the draftsman. It is only if the Court has no doubt that the draftsman "slipped up" (see Inco Europe at p. 592A), i.e. that there was a mistake made in the language chosen by the draftsman to give effect to the intention of the legislator, that it can be confident that the proper interpretation of the provision is given by other objective indicators of the legislator's intention. This is an approach to interpretation of a kind which is not unique to legislative instruments, but is of general application in the construction of all sorts of instruments which are intended to have legal effects: compare, e.g., Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] AC 749, esp. at 797G per Lord Steyn.
- Although in this judgment I have used the expression "rectifying interpretation" as a convenient shorthand expression for the process of construction pursuant to the guidance in Inco Europe, I should make clear that properly speaking the court does not rectify or amend the legislative instrument. It gives it its true meaning, arrived at by the process of objective interpretation described in the authorities referred to above.
- In the present case, Mr Eadie contends that the true meaning of the relevant text in the Commencement Order should be taken to be supplemented by reference to arrival at United Kingdom immigration control in a prescribed immigration control zone. This would involve reading in words referring to arrival at an immigration control zone in addition to the express text referring to arrival "in the United Kingdom", so as properly to express the true meaning of the legislator, or the substitution of text along the lines proposed in the formulation of the preliminary issue.
- In deciding whether it is appropriate to identify the true meaning of a legislative instrument as supplemented by implication or by substitution of formulation in this way, it will be necessary to have regard to other relevant guides to interpretation which may apply. Of these, an important guide will be the principle that the language used in penal legislation is to be strictly construed, to which Lord Nicholls called attention in Inco Europe at p. 592H, in the passage quoted above.
- Again, this is not an approach which is unique to the Inco Europe type of situation. It is a general approach to interpretation of legislation, to be borne particularly in mind when it is sought to argue for a construction by reference to aids to interpretation external to the text of the legislation itself. See Lord Nicholls' speech in Spath Holme at [2001] 1 AC, p. 399D-E:
"[For Government statements in Parliament] [a]s with other extraneous material, it is for the court, when determining what was the intention of Parliament in using the words in question, to decide how much importance or weight, if any, should be attached to a Government statement. The weight will depend on all the circumstances. For instance, the statement might conflict with the principle of interpretation that penal legislation is to be construed strictly."
- The principle that penal legislation is to be construed strictly is a long-standing one, of recognised constitutional importance: see e.g. Tuck & Sons v Priester (1887) 19 QBD 629, 638 (Lord Esher MR) and 644-645 (Lindley LJ) and the commentary in Bennion on Statutory Interpretation: A Code, 6th ed. (O. Jones and F. Bennion), section 271, pp. 749ff. The rationale for this principle is that it is presumed within our constitutional system that the legislator intends that a person subject to a penal regime should have been given fair warning of the risks he might face of being made subject to a penalty.
- But it is not an absolute principle. The overarching requirement is that a court should give effect to the intention of the legislator, as objectively determined having regard to all relevant indicators and aids to construction. The principle of strict interpretation of penal legislation is one among many indicators of the meaning to be given to a legislative provision. It is capable of being outweighed by other objective indications of legislative intention, albeit it is itself an indicator of great weight. As Bennion says, at p. 750, "In accordance with the basic rule of statutory interpretation a penal enactment will not be given a strict construction if other interpretative factors weigh more heavily in the scales"; and see R v Dowds [2012] EWCA Crim 281; [2012] 1 WLR 2576, at [37]-[38], and Professor Ashworth, "Interpreting Criminal Statutes: A Crisis of Legality" (1991) 107 LQR 419. If other objective indicators of legislative meaning and intent are sufficiently clear, and it is obvious to the requisite degree that the draftsman has made a slip in the language he has used, a person subject to a penal regime may be taken to have been given fair warning even though the interpretation adopted by the court involves some implication of terms in, or substitution for, the text of a relevant legislative provision.
- Part II of the 1999 Act is penal legislation, even though the penalty regime is constructed so as to operate within the sphere of ordinary civil law as a matter of domestic legal classification. Therefore, it is not sufficient for the Secretary of State simply to say that the three conditions identified by Lord Nicholls in Inco Europe, as enumerated by him in the passage quoted above, are satisfied. The court has to determine whether it is sufficiently clear that the draftsman slipped up in the language he used to express the legislator's intention, after taking into account the strong interpretative principle of strict construction of penal legislation. In other words, to overcome the effect of that interpretative principle, there have to be especially clear external indications of the legislator's true meaning.
- In my view, bearing this qualification firmly in mind, it is possible and may in a suitable case be appropriate to adopt an Inco Europe amending interpretation of a legislative provision in the context of penal legislation. That is in accordance with basic principles of statutory interpretation, as referred to above; see also R (Kelly) v Secretary of State for Justice [2008] EWCA Civ 177; [2009] QB 204 at [27]-[28] per Laws LJ. It is also of note that the Court of Appeal in R v D [2011] EWCA Crim 2082; [2012] 1 All ER 1108, at [66], whilst rejecting an argument that an Inco Europe amending interpretation in relation to a provision creating a substantive criminal offence should be adopted in that case, nevertheless stated "
we cannot rule out the application of the principles in the Inco Europe case in relation to a substantive criminal offence
".
- I also consider that this conclusion is supported by consideration of the approach adopted in the cognate area of the width of interpretation to be given to express terms in penal legislation, on a purposive approach, as illustrated by the judgment of the House of Lords in R v Z (Attorney General for Northern Ireland's Reference) [2005] UKHL 35; [2005] 2 AC 645. In that case, section 11(1) of the Terrorism Act 2000 created an offence of belonging or professing to belong to a proscribed organisation, and in Schedule 2 to that Act the "Irish Republican Army" (IRA) was listed as such an organisation. It was alleged that Z and others charged under section 11(1) were guilty of the offence by reason of belonging to "the Real Irish Republican Army" (Real IRA), which they contended was a distinct organisation from the IRA. The House of Lords adopted a purposive approach to the interpretation of the term, "Irish Republican Army", and held that the Real IRA fell within it. The House of Lords gave particular weight to the historical context in which the 2000 Act had been enacted, and rejected the argument for Z based on the principle that a person should not be penalised except under a clear law: see, in particular, [16]-[17] per Lord Bingham. The law under which Z was to be punished was, in context, sufficiently clear and gave fair warning: "
no member of the Real IRA in the late 1990s could have been unaware that he was a member of a proscribed organisation" (para. [23], per Lord Bingham).
- I turn, then, to consider the application of these principles of legislative interpretation in relation to Part II of the 1999 Act and the Commencement Order. In my judgment, this is a case in that exceptional class in which it is appropriate to imply wording into the relevant legislative provision, by application of the approach in Inco Europe, notwithstanding the penal context in which the exercise of interpretation falls to be carried out. I consider that, on its true construction, the relevant text in the Commencement Order is to be read as including by clear implication additional wording to indicate that the 2002 Act amendments also apply in relation to immigration control zones. This is for the following reasons:
i) As Mr Eadie correctly emphasised, in this case there is no doubt about the interpretation of the relevant substantive provisions in the primary legislation which create the relevant liability to a penalty. Those provisions are contained in Part II of the 1999 Act. Section 32 of that Act in both its original and its amended versions makes it clear that a person is a clandestine entrant if they attempt to pass through "immigration control" concealed in a vehicle (section 32(1)(b)), where "immigration control" is defined to include United Kingdom immigration control in a prescribed immigration control zone (section 32(10)). Section 32(2) (in both the original and amended versions) makes it clear that a person responsible for such a clandestine entrant is liable to pay a penalty. Therefore, this is not a case in which the court is asked to supply an amending interpretation of the principal substantive provisions creating the relevant liability to a penalty. Reading those provisions, a person subject to the regime would have fair warning of the possibility that he would be at risk of facing a penalty in relation to clandestine entrants hidden in his vehicle seeking to avoid United Kingdom immigration control in an immigration control zone in France;
ii) Despite valiant efforts made by Mr Nicholls to make suggestions to the contrary, there is no discernible or plausible reason to think that in making the amendments to the carriers' liability regime with effect from 8 December 2002 either Parliament or the Secretary of State intended to make a substantive departure in terms of the ambit of that regime, so as to narrow its operation to United Kingdom territory alone and exclude it from operating in the Coquelles immigration control zone in which it had previously applied. Given the clear and recognised public policy objectives of the carriers' liability regime, it would have been irrational to do this. This is strongly indicative that a drafting mistake was made in the Commencement Order: compare R (Kelly) v Secretary of State for Justice, at [18] and [20]-[23] per Laws LJ;
iii) It was clear that the basic thrust of the amendments to Part II of the 1999 Act introduced by the 2002 Act was to improve the position of carriers with respect to their Convention rights, taking account of the decision in International Transport Roth (albeit that by regulation 3 of the 2002 Regulations the Secretary of State also increased the maximum possible penalty in certain types of case). The objective of the 2002 Act amendments had equal applicability in relation to immigration controls both on United Kingdom territory and in immigration control zones in France, and is not suggestive of any intention to draw a new distinction between them;
iv) It is only in the fine detail of subordinate legislation promulgated to bring the 2002 Act amendments of Part II of the 1999 Act into force that one is drawn into a possible uncertainty about whether the penal regime clearly enacted in the primary legislation is intended to cover clandestine entrants seeking to evade immigration control in the immigration control zones in France. But the Commencement Order does not in itself create doubt about the possible liability of a carrier to a penalty in such circumstances under the primary legislation. If the Commencement Order had the meaning contended for by Mr Nicholls, but the 2000 Regulations had remained in force and not been revoked by the 2002 Regulations, then a person in the position of Mr Bogdanic taking his vehicle with concealed clandestine entrants into an immigration control zone would have been liable to a penalty by virtue of a combination of the unamended section 32 of the 1999 Act and regulation 3 of the 2000 Regulations. It is only because regulation 15 of the 2002 Regulations revoked the 2000 Regulations (and so removed the relevant prescribed penalty amount for the unamended section 32 which had been set out in regulation 3 of those Regulations) that the argument that the Commencement Order should be interpreted according to the principle of strict construction of penal legislation acquires significant force. If the 2000 Regulations had not been so revoked, Mr Bogdanic would have been subject to a penalty under the unamended 1999 Act carriers' liability regime and would in fact have been worse off under the penal effects of that unamended regime than under that regime as amended by the 2002 Act to take account of the decision in International Transport Roth. These observations serve to emphasise that, in assessing the force of the argument against the Secretary of State's submissions, it is appropriate to address the overall impression given by the whole raft of amending legislation and supplementary materials which came into effect as a composite unit on 8 December 2002, taken against the background of the 1999 Act as originally enacted and the 2000 Regulations, and having regard to aspects of the original carriers' liability regime, such as the 1999 Code of Practice, which continued to have effect before and after the amendment of the 1999 Act on 8 December 2002. There are a number of features of that wider picture which strongly indicate, on an objective approach, that the true interpretation of the Commencement Order is as contended for by Mr Eadie;
v) As a matter of overall impression, I consider it is clear that the object of making the raft of changes to the regime which came into effect on 8 December 2002 was to continue the pre-existing penalty regime, but with adjustments the main thrust of which was in favour of carriers to take account of International Transport Roth. It would be very odd to suppose that the Secretary of State, as the legislator promulgating the Commencement Order and the 2002 Regulations, intended their combined effect to include what would amount to a repeal of a significant part of the then existing carriers' liability regime, namely in relation to the Coquelles immigration control zone. One would have expected such a significant substantive repeal of part of that regime to be written expressly into the law, not achieved by the indirect means of a combination of the rather opaque text of the Commencement Order with revocation of the 2000 Regulations by regulation 15 of the 2002 Regulations;
vi) The true intended effect of the 2002 Regulations is, in fact, very clear indeed. Regulation 5 of the 2002 Regulations re-enacts regulation 5 of the 2000 Regulations, to prescribe Coquelles as an immigration control zone for the purposes of section 32(10) of the 1999 Act which is to say, for the purposes of activating the penalty regime under section 32 in relation to Coquelles. Within the scheme of Part II of the 1999 Act (as amended), regulation 5 of the 2002 Regulations has no other function or point. In my view, this is a very strong indication that the true intention of the relevant legislator (the Secretary of State, who promulgated the 2002 Regulations along with the Commencement Order) was that the carriers' liability regime should indeed apply in relation to the immigration control zone at Coquelles;
vii) This impression regarding the true intention of the legislator is also reinforced by other relevant objective indicators, in the form of the 1999 Code of Practice and the 2002 Code of Practice. The 1999 Code of Practice was issued by the Secretary of State under section 33 of the 1999 Act when the carriers' liability regime was first brought into effect in 2000. It was not withdrawn or amended, but simply continued to have effect when the amendments to that regime came into force on 8 December 2002. It shows that the Secretary of State intended before and after 8 December 2002 that the regime should have effect in relation to the immigration control zone at Coquelles;
viii) The same is true of the 2002 Code of Practice, which was issued under the new section 32A of the 1999 Act and came into effect on 8 December 2002 along with the other relevant changes to the regime.
- Mr Nicholls, in his argument, sought to derive assistance from Government press releases dated 24 April 2002 (at the time of the second reading of the Bill which became the 2002 Act) and 11 June 2002 (in advance of the report stage and third reading of that Bill). He suggested that these indicated that, contrary to the submission for the Secretary of State, the regime after amended by the 2002 Act was only intended to operate in relation to entry upon United Kingdom territory.
- In my view, however, these press releases do not assist Mr Bogdanic. Quite simply, they do not help to resolve the detailed issue of legislative interpretation which is before the court.
- As is usual with press releases, they are presented in relatively broad-brush terms and are not couched in formal or precise language. They included quotations from the Secretary of State at the time explaining the main thrust of the 2002 Act (of which amendment of the 1999 Act was but one aspect) in tendentious terms, for political effect. The press releases were Government statements which were not even made to Parliament for its consideration in the course of promulgating legislation. Had they been Government statements made to Parliament in the course of promulgation of legislation, they would only have been admissible as an aid to interpretation under the rule in Pepper v Hart [1993] AC 593 if, among other things, they were clear and unequivocal: see, e.g., Spath Holme [2001] 2 AC at 398H-399H, per Lord Nicholls. It is difficult to see how a Government statement in a press release could potentially qualify as an aid to interpretation of legislation if it did not meet a similar standard of clarity. The press releases referred to in this case do not satisfy that standard.
- At p. 399G-H in his speech in Spath Holme, Lord Nicholls said:
"In considering whether a ministerial statement is clear and unequivocal, regard must be had to the circumstances in which it was made. Extempore answers given in the course of vigorous debate in the House or in committee cannot be expected to be as comprehensive and precise as more formal statements."
Similarly, in my view, it may be said that broad-brush statements in Government press releases cannot usually be regarded as clear and unequivocal in the requisite sense.
- It is conceivable that in certain highly exceptional circumstances a Government press release might constitute a form of contemporanea expositio which could qualify as an aid to interpretation in cases of legislative ambiguity, but such cases will be very rare indeed and this is not one of them. Generally, I consider that attempts to construe legislation by reference to Government press releases are strongly to be deprecated.
- Finally, I turn to Mr Nicholls' submission based on A1P1 and the standard of lawfulness required under that provision. In my judgment, this submission adds nothing to the argument for Mr Bogdanic.
- The whole object of the domestic law rules of interpretation under Inco Europe and the other authorities reviewed above is that a rectifying interpretation of a legislative provision, particularly in a penal context, may only be adopted as the true construction of that provision if it is abundantly clear from the totality of relevant objective indicators regarding the legislator's intention that the literal language used by the draftsman reflects an obvious mistake by him and the true meaning of the provision is clear. This is a standard of interpretation which fully satisfies the requirements of the concepts of "law" and lawfulness deployed in the ECHR, as summarised in para. [147] of the judgment in Broniowski v Poland; see also the classic judgment in Sunday Times v United Kingdom (1979) 2 EHRR 245, at para. [49].
- In R v Z (Attorney General for Northern Ireland's Reference), Lord Bingham observed that an argument for Z based on Article 7 of the ECHR, which incorporates the same concept of lawfulness, could not succeed if Z's argument under domestic law in relation to the proper interpretation of the penal legislation in that case failed, as it did. The concept inherent in the Convention right did not add anything to the arguments already addressed in applying domestic law in the usual way. In my view, the same is true here.
- For the reasons given above, for the purposes of both domestic law and A1P1, at the material time in this case the law was clear and a carrier entering a United Kingdom immigration control zone in France both before and after 8 December 2002 had fair warning that he would be subject to the carriers' liability regime at that point.
Conclusion
- My conclusion on the preliminary issue is that the interpretative approach set out in Inco Europe should be applied to the Commencement Order, so that it should be construed as having the effect that section 125 of and Schedule 8 to the 2002 Act came into force on 8 December 2002 for the purpose of clandestine entrants who arrive in the United Kingdom or in a prescribed immigration control zone concealed in a vehicle or a rail freight wagon. I think that implying words into the text of the Commencement Order in this way is somewhat clearer than substituting text for what already appears in that Order.
