Is there ever any consultation between judiciary and legislative draftspeople?

Question

Often one sees judges attempting speculatively to infer legislators' intents by reasoning about their language. Yet nonetheless the objective seems to be to ascertain the legislators' original intentions.

If they really wanted to do this, it seems as though the most reliable and non-speculative method would be simply to ask the authors of the language what had been meant.

While the purpose of a separate judiciary is independence and checks and balances to ensure rule of written law, it would seem fair for the judiciary to quiz and challenge the authors as to the plausibility of their clarifications, given the actual written and assented words, in order to prevent them from misadvising the judges if it suits their political purposes after the fact.

So my question is simply: in any jurisdiction, but particularly common law ones like the UK and US, is it ever heard of for a judge to ask legislative authors for clarifications? Why, or why not?

Answer 1

For the same reason you can’t ask the parties to a contract what they meant

Legislation, once enacted, stands on its own independent of the people who drafted it, introduced it to Parliament and voted for or against it. These are not the same people in any event and since the legislation might have been passed anywhere between the 13th and 21st centuries, a lot of them will be dead.

There’s a fundamental issue of fairness here. The people who are obliged to comply with the law (you and I) can’t ask the politicians so neither can the judges who have to decide if we did.

Further, the judiciary cannot interact with the executive or the legislature in this way without violating the principle of separation of powers. Imagine you are charged with a crime and your guilt or innocence turns on the interpretation of the statute. Do you really want politicians who are looking at how the case plays out on Twitter telling the judge which interpretation to use i.e. effectively telling them whether you are guilty or not?

Answer 2

A judge could not ask a legislator to get a clearer idea of the legislative because the latter is the product of a majority consensus among the former. A single legislator can speak for their own intent, but the only thing that can speak for the intent of the legislative body is legislation. (This all assumes that the legislator is acting in good faith, which is by no means guaranteed.) In the US, legislation also makes some level of consideration for executive desires/intent.

What legislators can do, as a group or individually, is file briefs with the court expressing their beliefs on how a bill should be interpreted. These briefs are publicly-available, on the record, and are understood to reflect the view of the individual(s) who filed them, not the intent of the legislative body as a whole.

From the judiciary's point of view, if the legislature wishes to clarify its intent based on judicial misinterpretation, it should do so by updating the law through the normal legislative process.

Answer 3

I would say there are two issues here:

1) What is legislative intent?

It's not immediately clear what is legislative intent. Do all legislators in the House of Commons or US Congress have the same idea when they pass a law? Do only certain members' opinions matter? Are explanatory documents (often written by staffers rather than legislators) authoritative?

One can answer these questions, but the answers are not perfect and asking individual legislators doesn't seem to get around these questions easily.

2) Does a focus on the opinions of actual legislators undermine the rule of law?

The Rule of Law is an important concept in common law jurisdictions. It's not a clearly defined concept and you can look at a number of different expositions of it (Joseph Raz, Lon Fuller, and Lord Bingham come to mind) but basically the idea is that law is meant to guide people's behavior and so the law must be available to people at the time at which they act.

If the meaning of a law depends on some legislator's opinion, delivered long after the imputed act occurred, then it could be seen as a kind of ex post facto legislation, which was inaccessible to people at the time that they were doing whatever is claimed to violate the law.

The use of actual legislator's opinions also raises the cost of understanding the law and so makes the law harder to follow because it is no longer enough to just read the law (or even the surrounding documents), you need to also interview legislators etc...

All of this means that if you do plan to use the idea of legislative intent, you need to circumscribe the number of materials on which legislative intent can be based or you might press the Rule of Law more than you would like.

Answer 4

The other answers explain why this can't happen in the course of a trial. However,

This can occur as part of an Advisory Opinion

In sone countries, such as the UK and Canada, the government can send questions to the Supreme Court, usually about the constitutionality or interpretation of legislation that they are preparing to present to parliament. The specifics vary by country, so I'll use Canada as an example.

In Canada, the government or the provinces have the authority to send "reference questions" to their respective high courts through their Attorneys General. These reference questions will generally relate to issues about the interpretation or constitutionality of legislation the the government is preparing to present to Parliament. The court will then decide whether or not to hold a hearing relating to those questions (the court has the power to modify, or to refuse to answer any questions that are presented to it.) Then the government, as well as the provinces and 3rd party interveners, as applicable, will file written briefs detailing their positions on the issues in question, and oral arguments will follow after all of the parties have submitted their written arguments. At the end of the hearings the court will usually reserve its decision and later release a detailed written judgement. Like an actual trial, the individual judges may offer differing opinions, but the decisions laid out in the reference decision are not legally binding and the court may decide differently in a real trial.

In the United States, the constitution implicitly prohibits federal courts from issuing advisory opinions, but some states do allow it for their supreme courts.