It has been reported in the media that, in R (English Bridge Union Ltd) v The English Sports Council, the Administrative Court determined the question of whether or not bridge should properly be classified as a sport. Nowhere in the judgement is that question addressed. What the court did was determine whether (for the purpose of fulfilling its functions) the English Sports Council (the 'Council') could lawfully adopt a definition of sport which required physical activity, given the Council's Royal Charter and the relevant legislation.
In finding that it was entitled to adopt such a definition, the court held that repealed parts of an Act can legitimately be used to assist in understanding the proper interpretation of the parts of the Act which remain in force.
Background
Established by Royal Charter in 1996, one of the Council's key functions is the distribution of funding for sporting activities, including funding provided under the National Lottery etc Act 1993 and under the Physical Training and Recreation Act 1937 (the '1937 Act'). Neither the relevant legislation nor the 1996 Charter defined sporting activities for these purposes and, in its recognition policy, the Council adopted the definition of "sport" from the European Sports Charter; which defined sport as including specified forms of "physical activity".
This meant that so-called "mind sports" (such as bridge) did not qualify as a sport and could not benefit from the Council's funding or obtain any other benefit that might have followed from being classified by it as a sport. Other recognised definitions of sport include "mind sports". For example, bridge is recognised as a sport by the International Olympic Committee.
The Council's rationale for adopting the definition in the European Sports Charter was that the definition aligned with the underlying legal framework for its activities. In particular, the 1996 Charter referred to "sport and physical recreation". Tracing the background of the Council's predecessor bodies led back to the 1937 Act, also relevant because the Council distributes funds under powers contained in that Act. The 1937 Act referred to the provision of "physical training and recreation".
A background memorandum to the 1937 Act suggested that it was intended to encompass only physical activities. In addition, provisions in the 1937 Act at the time of commencement (now repealed) supported this as its intention. For example, a predecessor body of the Council was given functions relating to "the maintenance and improvement of the physical well-being of the people by means of exercise and recreation".
The Council submitted that its engagement with sport related only to sport which involved physical activity and that this was supported by the proper interpretation of the legal framework.
English Bridge Union (the 'EBU'), the representative body for bridge in England, brought judicial review proceedings against the Council's adoption of a recognition policy using a definition of sport which was limited to physical activity. The challenge was brought on the following key grounds:
- The Council had misconstrued the 1996 Charter in adopting a policy where physical activity was required for an activity to be recognised as a sport. The reference to "sport and physical recreation" in the 1996 Charter should not limit sport to physical activities as this would be against the ordinary natural meaning of the word. There was also no necessity to confine the definition of objects of the 1996 Charter to those set out in the 1937 Act (as the 1937 Act did not impose a duty on the Council).
- In any case, the Council had misconstrued the phrase "physical training and recreation" in the 1937 Act. This was in part because the proper interpretation of the statute has moved on with the passage of time, such that "mind sports" should now fall within such a phrase (even if they did not when the legislation was passed). But this was also because the Council was seeking to use wording in the 1937 Act which had been repealed to understand its proper meaning and this was an impermissible approach to statutory interpretation.
The decision
The claim failed on all grounds. In summary Dove J held that:
- It is "entirely permissible to have regard to any relevant parts of the Act which were part of the Act as originally passed but were subsequently repealed in seeking to understand the intention of Parliament". When taking into account the repealed provisions and the background memorandum, the court was not persuaded that the Council had fallen into error.
- The court did not agree with the EBU that the meaning of the phrase "physical training and recreation" has moved on since 1937. There may be good policy reasons for the 1937 Act to promote mind sports, but this does not alter the meaning of the legislation; the inclusion of mind sports would require the Act to be amended by Parliament.
- The meaning of the 1996 Charter could only properly be derived from examination of the text of the Charter alongside the background. While not determinative, it was quite proper for the Council to use the 1937 Act as a starting point. The 1937 Act (properly interpreted) and the other background to the 1996 Charter provided sufficient support for the conclusion that the Council's (and its predecessors') work was confined to physical activity.
- For these reasons, it was appropriate for the Council to have adopted the definition of "sport" from the European Sports Charter.
Commentary
In this case, the court was required to apply three different rules of statutory interpretation:
- First, a statute is 'always speaking' - the meaning of a provision cannot change over time, but the context or application of a statutory expression may change (R (Quintavalle) v Secretary of State for Health). For example, an Act passed several decades ago which applies to dogs could not properly be interpreted to apply to cats, but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed, but are so regarded now. Dove J did not consider that this rule assisted the EBU.
- Second, it is often permissible to consider the background materials to a statutory provision to aid in interpretation, although there are limitations to this (such as the rule set out in Pepper (Inspector of Taxes) v Hart for when recourse may be had to Hansard materials).
- Third, it is permissible to have regard to parts of an Act which have been repealed in seeking to interpret parts of the Act which remain in force.
The third of these rules is the least established. Dove J considered that the authorities relied on by the EBU did not assist them in arguing that the repealed provisions could not be considered, because the authorities related to the cessation of substantive effect of a provision on its repeal. Dove J considered that whether or not a repealed provision has substantive effect is a different question from whether or not a repealed provision can be used to assist in understanding Parliament's intention in relation to other provisions which are still in force.
It is entirely logical that, in interpreting a provision which is not completely clear, the court should be able to look at the entire background, including repealed provisions. Repealed provisions can clearly be of value in assisting a court to understand legislative intention (as they were in this case).
Nonetheless, where a provision has been repealed, one might be forgiven for assuming that it can be consigned to history. On the basis of this rule of interpretation, that assumption would be incorrect.
It should be noted that the courts have, in a number of cases, considered repealed provisions in a much broader way, where the repealed provision is not in the same piece of legislation as that under scrutiny, but where there is some other reason why Parliamentary intention from one Act might (at least in part) be gleaned from another. Use of repealed provisions in this way will necessarily be context specific.
There seems to be no reason in principle why the principle of having regard to parts of legislation which have been repealed (in order properly to interpret parts which are still in force) should apply any differently to primary legislation than to secondary legislation or any other legislative document (such as a byelaw or licence condition).
Anyone seeking to construe the meaning of ambiguous or unclear provisions should be prepared to review repealed provisions which are related. In addition, from the other end of the telescope, this rule of interpretation should be in the mind of those drafting amendments to such provisions since it may, in certain cases, impact on how repeals should be enacted.
We note that the EBU has applied for permission to appeal.