Notes from the Fringe: Can Explanatory Notes Explain Parliament?

One issue which can cause difficulties for parties to litigation, and indeed the Court, is when a piece of legislation drafted by Parliament is vague or does not cover a certain set of circumstances (whether that is because it was a novel point which has arisen out of unique facts or otherwise). In situations where a piece of legislation leaves a gap, questions arise as to how the Court is able to resolve such disputes and how to resolve the legal conundrum before it. One argument which is often deployed (and this can be done at first instance or on appeal) is the "intention of Parliament". This argument looks at how the creators of the legislation believed it would operate. The intention of Parliament can be interpreted by use of Hansard, which is the official report of all Parliamentary debates.

The recent Court of Appeal decision of Adriatic v Long Leaseholders [2025] EWCA Civ 856 considers another avenue of interpreting legislation: the explanatory notes which now accompany new Acts of Parliament. This article answers the questions of: whether explanatory notes can potentially be relied on by a party in litigation, whether the explanatory notes to an Act of Parliament have any authority, and how much weight (if any) should be attached to them. There are additional points which arise from the Adriatic appeal, but they fall outside of the scope of this article.

What Are Explanatory Notes?

Explanatory notes were introduced by Parliament in 1999, and are therefore still a relatively new concept. They usually accompany primary legislation (such as an Act of Parliament). They are found with all Public Acts (which, as discussed in my last post in passing, here, apply to the jurisdiction generally).

The purpose of explanatory notes is relatively straightforward: it is text created by the government department responsible for the subject matter of the Act, and it simply explains what the Act sets out to achieve in a concise and clear statement. This is done so that the law is accessible to readers who are not legally qualified; this has been a shift towards making the law more accessible across the board.

Background Facts and Earlier Proceedings

The facts of Adriatic are worth considering briefly. The landlord was the freehold owner of a 10-storey mixed-use building. This contained 32 residential flats, which were let on long leases. The respondents were the leaseholders of those flats. In 2020 (and it likely that the Grenfell Disaster played some role in highlighting these concerns), it emerged that substantial remedial works were required. These works were to address defects in the external construction of the building, which caused a fire risk.

The appeal before the Court of Appeal was in relation to the Building Safety Act 2022 ('the 2022 Act'). One of the questions which arose was whether the 2022 Act prevented a landlord from recovering service charges from tenants in respect of costs which they (the landlord) had incurred before Schedule 8 of the 2022 Act came into force. The Upper Tribunal held that the terms of Paragraph 9 of Schedule 8 would prevent the landlord from recovering its costs of an application under section 20ZA of the Landlord and Tenant Act 1985 for dispensation from the need to consult in respect of major building safety works to the building.

Court of Appeal Decision

The relevant paragraphs of the decision are 31-34, 65-72 and 141, with the main crux of the decision being at paragraphs 65 - 71 of the judgment.

In summary, the Court of Appeal found that the government had published explanatory notes to the 2022 Act following its enactment. Therefore, there was a break in time between the Act being passed and the explanatory notes being drafted.

The Court held that where explanatory notes had accompanied a Bill in its passage through Parliament, they were capable of shedding light on what Parliament intended. Where they had been published only after a statute had been enacted, they might be of persuasive authority, but did not enjoy any particular legal status and could be compared with academic writings.

Newey LJ, giving the lead judgment, at paragraph 70 of Adriatic, confirmed this: "In my view, the position is similar where explanatory notes have been published only after a statute has already been enacted. The notes may be of persuasive authority, but they do not enjoy any particular legal status and can be compared with academic writings."

Implications and Analysis

There are a few take away points from this decision.

Firstly, the Court of Appeal reiterated the Supreme Court decision in R (O) v Home Secretary [2022] UKSC 3, [2023] AC 255, where Lord Hodge explained that external aids to interpretation must play a secondary role to the legislation itself. This would include explanatory notes. The Supreme Court did, at paragraph 30 of their decision, state that explanatory notes prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. This suggests that explanatory notes can be used as the basis of an argument where there is ambiguity.

The second relevant question is whether or not the explanatory notes accompanied a Bill through the legislative process. If the answer is in the affirmative, it will be of assistance to the Court. If, however, the answer is in the negative, Adriatic suggests that less weight should be attached to them as they had not informed the decision making of Parliament. This makes sense; it a document was not before Parliament at the time of a debate, it is unlikely to have informed their decision making and there is also a risk of some form of retrospective interpretation which produces an unintended result. In summary:

• At paragraph 67 it was expressed by Newey LJ that: "where explanatory notes have "accompanied a Bill in its passage through Parliament", there is sense in regarding them as capable of shedding light on what Parliament intended."

• In contrast, and in the same paragraph as above: "where, on the other hand, explanatory notes in respect of a statute did not exist when it was being passed, there is less reason to see them as a guide to Parliament's intentions. They may, of course, show what the Department which promoted the Act understands it to mean, and possibly what it wished it to mean, but the materials plainly cannot have informed Parliamentary decision-making."

  
  

• The Court of Appeal referred to the decision of R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28, [2023] 1 WLR 2594, which confirmed that reference to the explanatory notes may inform the assessment of the overall purpose of the legislation and may also provide assistance to resolve any specific ambiguity in the words used in a provision in that legislation. However, the extent of that exercise depended on the circumstances and therefore was to be taken on a case by case basis.

Thirdly, it must be remembered that Parliament and the government are not the same. There are of course, similarities between the bodies, but they are very much separate. Therefore the reasons which the Government gives for promoting legislation cannot always be treated as explaining why Parliament chose to enact it in the way that it did. This observation was made by the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223, which the Court of Appeal referred to. For those reasons, the explanation given by the government for Parliament's decisions will not be without scrutiny; it cannot be argued that there is a presumption that the views it contains are correct and should be rejected only for good reason.

Fourth, it may be helpful for a court to refer to the guidance in the interpretation of the legislation, and such guidance may have some persuasive authority. However, the influence of its authority is limited: the Supreme Court has previously indicated that it does not differ from a statement by an academic author in a textbook or an article, and therefore does not enjoy any particular legal status.

Finally, the Court of Appeal agreed unanimously (which is interesting given that the substantive appeal was a split decision) with the observations made by previous courts; therefore this case merely confirms the position in a clear and precise manner.

Please note that our posts should not be intended to be legal advice and should not be construed as such; they are merely discussions and therefore readers are encouraged to seek professional legal advice for their own matters.