I seem to have provoked a sleeping giant.
In my defence, I was merely attempting to draw Ray’s attention to the existence of the Explanatory Memorandum which he may not have seen and, if so, that it may have been of value to his considerations wrt express trusts etc. I had not intended to suggest that its content resolved beyond doubt the issues we were discussing and apologise if this is how it read.
Having said this you say “While a court or tribunal would doubtless hold its contents to be inadmissible or irrelevant with a modicum of respect, the legal standing of such a document and its probative value to the forensic process is on a par with a newspaper horoscope or a bus ticket… …Judicial methodology for interpreting primary and secondary legislation is well settled and it is a myth that any deference is shown to third party opinions about the meaning of law simply because they emanate from a Minister, Government Department or even, as here, the Parliamentary draftsperson”.
Whilst the bus ticket reference made me smile (as an aside are bus tickets still issued???) I suggest the view expressed as to legal standing is wide of the mark.
Lord Steyn in Westminster City Council v National Asylum Support Service [2002] UKHL 38 commented"
“The question is whether in aid of the interpretation of a statute the court may take into account the Explanatory Notes and, if so, to what extent………there is no need to establish an ambiguity before taking into account the objective circumstances to which the language relates. Applied to the subject under consideration the result is as follows. Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated as admissible:…. "
Back in the early 1990’s the Hansard Society stated “There should be Explanatory Notes on Statutory Instruments to explain their purpose and effect …The courts should be allowed to use … Explanatory Notes on SIs as an aid to interpretation”.
Malcolm Finney