Statutory Interpretation
This is an easy chapter, and it’s tested in P2 every year. All you need to do is apply the given law in P2 and answer the questions. You only need to use the literal approach and no knowledge by yourself. It is just you and the law. Think like a layman who does not know any law and looking at the law for the first time ever. |
If tested in P1, you will get an essay, and all you need to do is write the rules in three sections. First would be the rules of interpretation, second will be the rules of language, and the last one will be the aids (extrinsic and intrinsic aid). |
Take advantage of this chapter as it is very scoring. |
Introduction
• As demonstrated at the start of this chapter, Parliament passes multiple laws yearly. The context of the legislation should be clear and precise in these laws, but that is not always the case. To help understand legislation, Parliament often provides separate sections to describe the terms used in that legislation: these sections are referred to as interpretation sections. Of example, in the 1968 Theft Act, the concept of' theft' is laid out in section one, and sections two through six describe the key phrases in that definition. To help the judges understand basic words, Parliament has also enforced the Interpretation Act of 1978, which elucidates that' he' includes' she's, and singular includes the plural unless the opposite happens.
• The interpretation of the law, in its broadest terms, is the method of assessing the meaning of a written document. The Interpretation Act 1978 has a limited scope to support judges with a statutory interpretation in that it contains the standard definitions of specific terms, including the rebuttable assumption that male-sex language often involves females and that the singular involves plural.
• There are three key principles for the understanding of a statute; the literal golden and mischief law, and also the holistic version, defined as the purposive approach. Each law will be discussed separately with case examples.
1. The Need for Statutory Interpretation
• Regardless of the aids listed above, many cases come to the courts because there is a conflict over the interpretation of an Act of Parliament. In such cases, the duty of the court is to determine the exact meaning of a specific word or statement. There are multiple reasons why the meaning may not be clear:
These are the reasons why you will need statutory interpretation |
A broad term
• Words might be made to cover multiple possibilities; this can lead to problems about how wide this should go. There is a term in the Dangerous Dogs Act 1991:' any dog of the type known as the pit bull terrier,' which sounds straightforward but has caused issues.
• What is the meaning of 'type' here? Does that mean the same thing as' breed'?
• This was the key point in the controversy in Brock v DPP (1993), And the Queen's Bench Divisional Court determined that 'type' had a bigger meaning than 'breed. 'This may include dogs which were not pedigree pit bull terriers but had a substantial number of dog features like that.
Ambiguity
• This is where a term has more than one meaning; it may not be clear what meaning is supposed to be used.
A drafting error
• The Parliamentary Counsel who drafted the original Bill may well have made mistakes that Parliament has not found yet; it is highly likely to happen when the Bill is amended many times before going through Parliament.
New developments
• New technology may surely mean that an old parliamentary act does not include modern-day circumstances. This is seen in the case of the Royal College of Nursing v DHSS (1981), where medical science and practices have progressed since the introduction of the Abortion Act in 1967.
Changes in the use of language
• Over the span of time, the meaning of words tends to change. That was one of the issues in the Cheeseman v DPP (1990) case. This case's Times law report is set out in the activity section below.
• Police officers who encountered a man masturbating in a public restroom were not' passengers' according to section 28 of the Town Police Clauses Act 1847 because, after several complaints, they were stationed in the lavatory.
• The Queen's Bench Divisional Court, therefore, held in allowing an appeal by way of a case reported by Ashley Frederick Cheeseman against his prosecution by Leicester City Justices of a misdemeanor of deliberately and indecently revealing his person in a lane to the nuisance of passengers.
• Section 81 of the Public Health Amendment Act 1902 expanded the context, in section 28, of the term' street' to include, inter alia, any place of the public resort within local authority's control.
• LORD JUSTICE BINGHAM, in accordance with Mr. Justice Waterhouse, said that the Oxford English Dictionary indicated that' passenger' had a meaning in 1847 when the Act was passed, now quite uncommon except in the expression 'foot-passenger' of' a passer-by or -through a traveler (usually on foot); a wayfarer.'
• Prior to the meaning of' street' being broadened in 1907, it was not difficult to apply the technical definition of passenger: it clearly covered anyone using the street for ordinary purposes of travel or transport.
• The dictionary definition could not be generalized too accurately to a place f public resort such as a public restroom, but when used in the sense of 'passenger,' it had to mean someone resorting to a place in the usual manner for one of the reasons for which people would normally resort.
• The two police officers were not' passengers 'if that was the correct approach. They were positioned in the public restroom to catch people who committed acts that had given rise to earlier complaints.
• The officers did not go there in an ordinary way; they moved to that place of the public resort but for a specific purpose, and were, therefore, not passengers.
Courts may be relied upon to define law in the face of disagreements over the meaning of a word or expression found in a statute. Such conflicts can occur for a wide range of reasons. Words have long been considered to be an unreliable means of communication. Inaccuracies may have arisen at the level of writing, term or phraseology confusion, linguistic change with time, regulation of specific points, or inability to adapt laws to new developments. This may contribute to a role for the judiciary in the interpretation of the law. |
2. Literal Approach versus the Purposive Approach
While there are four approaches in the spectrum, the literal and purposive approaches are at both ends. These are opposites. |
• Cheeseman's case highlights many issues surrounding statutory interpretation. It's an instance where the courts take the terms quite literally. It can be argued, though, that the convict was' deliberately and indecently revealing his person in the street' and was caught doing so.
• Is it significant whether the police were 'passengers'? They were there because of previous complaints about this sort of behavior, and the accused presumably figured they were normal members of the general public.
• Some people might argue that the whole intent of the Act was to avoid such behavior; this is the purposive approach to statutory interpretation – rather than looking at the exact meaning of each term, a wider approach is being taken.
• One of the major issues in statutory interpretation is the clash between the literal approach and the purposive approach. Should judges consider each word and take the words literally, or should it be understood that every case can not be addressed by an Act of Parliament and that the meaning of a word cannot be accurate always?
• The purposive approach is followed in European law.
• The Treaty of Rome lays out basic rules but without specific details. As Lord Denning had said in the Treaty of Bulmer Ltd v Bollinger SA (1974):
• 'This particular rule lays out general principles. It reflects its thoughts and aims, all in moderate-length sentences and commendable style.
• However, it lacks precision. This uses terms and phrases and does not define what they mean. An English lawyer would find an interpretation clause, but he would look in despair. There is none of that. There are discrepancies and lacunas all throughout the Treaty. The judges have to fill in those.'
• Moreover, since European treaties, laws, and directives are provided in multiple languages, it would be challenging, if not impossible, to take the meanings of words literally. Exact translation from one language to another isn't always possible
• In English law, the judges were unable to decide on which approach must be used, but instead established three different rules of interpretation, over the years. These are:
- The literal rule
- The golden rule
- The mischief rule.
• These rules take various interpretation approaches, and some judges tend to use one rule, while other judges prefer a different rule. This means that the meaning of a statute in English law can differ depending on which judge hears the case
• Nevertheless, once an interpretation has already been set down, it may then form a precedent for future cases under the normal rules of the judicial precedent. Because the three rules can lead to various decisions, it's imperative to understand those decisions.
3. The Literal Rule
This rule is used to so certainty can prevail. As the courts say, “Certainitiy in law is more important that individual hardships.”
• According to this rule, courts give terms their simple, ordinary, or literal meaning even if the outcome is not quite practical.
• In R v Judge of the City of London Court (1892), Lord Esher articulated this notion when he said:
• 'If the parameters of an act are simple, then even if they proceed to a manifest absurdity, you will follow them. The court has nothing to do with whether the legislature has committed an absurdity.'
• The rule had been created in the early 19th century and has since been the predominant rule used. In many cases, it has been used, even though the result has made the law nonsense.
• This is demonstrated in Whiteley v Chappell (1868), where the offender was convicted under a section that made impersonating "any person entitled to vote" an offense. The offender was claiming to be a person whose name was on the list of voters but who had died.
• The court held that the offender was not guilty as a deceased person is not "entitled to vote" in the literal meaning of the words.
• The rule is also opposed because it can lead to arbitrary judgments, as in London & North Eastern Railway Co v Berriman (1946), where a railway worker was killed while carrying out maintenance work, oiling points along a railway track.
• His widow attempted to claim compensation because the railway company had not appointed a look-out person according to a law under the Fatal Accidents Act.
• It specified that for men working on or along the railway line' for relaying or restoring purposes,' a look-out should be given. The court took the words' relaying' and' repairing' in their literal meaning and said that the oiling points maintained the line and did not relay or fix so that the claim made by Mrs. Berriman failed.
• It is no surprise, especially after decisions such as the two above, that Professor Michael Zander has condemned the literal rule as being mechanical and divorced from the realities of language use.
• Another issue with using the literal rule happens when a phrase has two meanings or more. Which of meaning should be used can be difficult to decide.
4. The Golden Rule
• This rule is an upgrade of the literal rule. The golden rule begins by focusing on the literal meaning, but then the court is allowed to ignore an interpretation that would result in an unreasonable outcome.
• There are two points of view about how much the golden rule could be of use. First and foremost, it is quite narrow and is expressed in the remarks of Lord Reid in Jones v DPP (1962) when he said:
• It is a cardinal principle relevant to all sorts of laws which, for no reason whatsoever, you can add to a statutory provision a meaning which the words of that provision cannot bear.
• If they can have more than one meaning, then you can choose between those meanings, but you can't go beyond that.'
• So the court can only choose between the possible meanings of a word or phrase under the narrow application of the golden rule. If only one meaning exists, then that must be chosen. In Adler v George (1964), one can see this narrow view of the golden rule in effect.
• In this circumstance, the Official Secrets Act 1920 made blocking Her Majesty's Forces' in the vicinity' of a prohibited area, an offense. The accused had actually obstructed HM Forces in the prohibited area.
• They reasoned that they were not liable because the law's literal language did not apply to anyone in the prohibited area. It referred only to those' in the area,' that is, to suggest outside but close to it.
• The Divisional Court found the suspects liable, as it would be unfair if those who caused an obstruction outside the prohibited location were guilty, but nobody inside was. The words are to be translated as being 'in or in the vicinity' of the prohibited area.
• The golden rule's second and broader application is where the words have only one precise meaning, and that meaning would result in a repugnant case. In such a case, the court will bring up the golden rule to change the legislation's words to avoid this problem. A prime example of this was the case of Re Sigsworth (1935), where a mother had been killed by her son.
• The mother had not prepared a will, and her land should normally have been inherited by her next generation, according to the rules laid down in the 1925 Administration of Estates Act.
• This meant that the murderer's son would have inherited as her 'issue.' There was no confusion in terms of the Act, but the court was reluctant to allow a murderer to profit from his felony, so it was held that the literal rule should not be enforced, and the golden rule would be used to avoid the inheriting son's repugnant circumstance.
• Indeed, the court wrote in the Act that the' issue' would not have the right to inherit where they had murdered the dead.
• The golden rule respects Parliament's exact words, except in limited circumstances. The golden rule offers an' escape route, 'where there is a problem with using the literal rule.
• It enables the judge to choose the most rational meaning where the words in the Act have more than one meaning. In cases where the literal rule would lead to a repugnant situation, it can also provide rational decisions.
• It would certainly have been unfair to permit the son to profit from his crime in Re Sigsworth. That demonstrates how it can avoid the literal rule's worst problems.
• It is very limited in use.
• Therefore it is used only on rare occasions. Another problem is predicting when courts will use the golden rule is not always possible.
• It was described by Michael Zander as a' feeble parachute.' It's an escape route, in other words, but it cannot do a lot.
5. The Mischief Rule
Personally, I feel this is the best rule as it has a procedural sense and it has a set rule as to how to use it |
• This rule confers more discretion on a judge than the other two rules. The rule's definition comes from the case of Heydon (1584), where it had been said there were four points that the court should address. These, in the old case's original language, were:
1. 'What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What was the remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?
4. The true reason of the remedy.
• Then the office of all the judges is always to make such a structure as to overcome the mischief and facilitate the remedy' According to this rule, the court should, therefore, look to see what the legislation was before the Act was passed in order to identify what loophole or' mischief' the Act was intended to address.
• The court should then interpret the Act to cover the gap. This is clearly a method somewhat different from that of the literal rule.
Cases using the mischief rule
• In Smith v Hughes (1960), the mischief rule was used to interpret s 1(1) of the Street Offences Act 1959, which specified that' it is an offense for a common prostitute to loiter or solicit in a street or public place for prostitution purposes.'
• The court considered six different women filing appeals against conviction under this section. The women had not been' in the street' in each case; one was on a balcony, and the other was on the windows of the rooms on the ground floor, with the doors either partially open or closed. In each case, by calling or knocking on the glass, the women attracted men's attention, but they pleaded that they were not guilty under this section because they were not actually' in a street or public place.'
The court ruled guilty, with Lord Parker saying:
'For my part, I tackle the issue by contemplating what the mischief to which this Act is aiming is. Everybody knew this was an Act to clean up the streets, enabling people to walk down the streets without being molested or approached by regular prostitutes. Viewed in this context, it can make little difference whether the prostitute is posing while on the street or standing in the hallway or on a balcony or at a window, or whether the window is closed or open or half-open.'
• There was a somewhat similar point in Eastbourne Borough Council v Stirling (2000), where a taxi driver was charged with' plying for hire on any street' without a license to do so. His taxi had been parked in the station forecourt on a taxi rank.
• He was found guilty as he was trying to get buyers off the street even though he was on private land.
• The judiciary responded to Smith v Hughes and said it was the same point. If his car was placed so that the offer of services was targeted at people on the street, a driver would work steadily to hire in the street.
• Another case where the mischief rule has been used by the House of Lords was the Royal College of Nursing v DHSS (1981). In this situation, the language of the 1967 Abortion Act, which stipulated that pregnancy should be' ended by a licensed medical practitioner,' was in question.
• When the Act was passed in 1967, the abortion procedure was such that it could only be performed by a doctor (a licensed medical practitioner). Improvements in medicinal practice from 1972 onwards indicated that the normal method of terminating a pregnancy was to stimulate premature labor by using drugs.
• A doctor administered the first part of the procedure, but the second part was done by nurses without a doctor involved. The court had to determine whether this proceeding under the Abortion Act was legal.
• The case went to the House of Lords, where the judge's majority (three) found it to be legal, whereas the other two said it was not legal.
• The three majority judges based their decision on the mischief rule, attempting to point out that it was the unsatisfactory state of the law before 1967 and the number of illegal abortions that the mischief rule was trying to fix.
• They also said the rule's aim was to broaden the criteria for abortion and ensure they were done in the hospital with adequate skill. The other two judges ended up taking the literal view and said the words of the Act were apparent and that abortions could only be accomplished by a registered doctor.
• They said the other judges did not interpret the Act but rather' redraft it with a vengeance.'
The mischief rule in detail
• The mischief rule supports the aim of the law as it helps judges to look back at the loophole that the Act was intended to protect. The focus is on ensuring that the gap in the legislation is filled in. This will most likely produce a' just' result.
• The Law Commission supported the mischief rule and proposed that it be the only rule used in statutory interpretation, as long ago as 1969.
• There are issues, however, with the mischief law being used. First, there is the possibility of judicial lawmaking. Judges try to fill the loopholes with their own ideas on how the law can resolve the discrepancy.
• Furthermore, the case of the Royal College of Nursing v DHSS demonstrates that the use of the mischief rule is not always agreed by the courts.
• The use of the mischief rule might result in legal uncertainty. It is impossible to determine when the law will be used by judges or what will occur. That makes it hard for attorneys to warn clients about the law.
• Lastly, the mischief rule is not as broad as the purposive solution (see section 7.9) as it is restricted to looking back on the old law gap. It can not be used to take a more general look at the intention of the law.
• The three rules clearly will lead to different conclusions about the meaning of the words and phrases. The opposite is an activity based on a real situation where the different rules would lead to different decisions.
• Not even the literal rule keeps words in total isolation. It is common sense to look at the other words in the Act to see if they impact the disputed word or sentence.
6. Rules of Language
Not even the literal rule keeps words in total isolation. It is common sense to look at the other words in the Act to see if they impact the disputed word or sentence. Looking at the other words in the Statute, the courts have developed a lot of minor rules that can help to clarify the meaning of words and phrases where a different form of the sentence was used. Such rules which have Latin names as well are:
- the ejusdem generis rule
- the express mention of one thing excludes others
- a word is known by the company it keeps.
CASE: FISHER V BELL [1960] 1 QB 394
• The Restriction of Offensive Weapons Act 1959 s 1(1)
• Any person who manufactures, sells or hires or offers for sale or lends or gives to any other person–(a) any knife that has a blade that automatically opens by hand pressure applied to a button, spring or other device in or attached to a knife handle, sometimes known as a' flick knife'... shall be guilty of an offense.'
• Facts: the accused was a shopkeeper who had displayed the knife's handle. He was charged under s 1(1), and it was up to the court to decide if he was guilty of offering the knife for sale. There is a specific legal definition of ' offers for sale, ' under which it is not an offer to sell an item in a shop window. (Students of contract law should know this rule!)
7. The 'ejusdem generis' Rule
• This means that where a list of words is accompanied by general words, then the general words are confined to the same kind of items as specific words. When looking at situations, it is easier to understand.
• A worker had hurt his eye in Hobbs v CG Robertson Ltd (1970) when the brickwork which he was removing, splintered. He was claiming compensation under the 1961 Construction (General Provision) Regulation. These regulations make it an obligation for employers to provide workmen with goggles while they crack, cut, dress or carve stone, gravel, slag, or similar material.
• The judiciary held that within the term' a similar material, 'brick was not of the same category. Brick wasn't generis ejusdem, with stone cement, slag.
• The explanation was that all the other materials were hard, so when struck with a hammer, pieces would fly off them, and in comparison, brick was a softer product. This judgment meant that the application for compensation from the worker failed.
• For this rule to operate, there must be at least two specific words in a list prior to the general word or phrase. The court had to interpret the phrase ' theaters and other places of amusement' in Allen v Emmerson (1944) and decide whether it applied to a funfair.
• Since there was only one specific word, ' theaters, ' it was determined that a funfair fell under the general phrase ' other places of fun, ' although it was not of the same kind as theaters.
8. Expression unius exclusion alterius (the mention of one thing excludes others)
• Where a list of words is available that is not accompanied by general words, then the Act refers only to the things in the list. In Tempest v Kilner (1846), the court had to decide whether the Statute of Fraud 1677 (which needed a contract to sell' products, goods and services' in excess of £ 10 in writing) applied to a contract to sell stocks and shares.
• No general words followed the list ' goods, wares, and merchandise,' so the court held that only contracts for those three kinds of things were influenced by the statute; because stocks and shares were not mentioned, they were not caught by the statute.
9. Noscitur a sociis (a word is known by the company it keeps)
• It means that the words have to be viewed in the context and translated correspondingly; it includes looking at other words in the same section or in other sections of the Act.
• In Inland Revenue Commissioners v Frere (1965), where the section laid down rules regarding' interest annuities or other annual interest' were important words in the same sentence.
• The first use of the word ' interest' alone might have meant any interest paid, whether on a daily, monthly, or annual basis. Because of the section's words' other annual interest,' the court resolved that' interest' implied only annual interest.
• The House of Lords in Bromley London Borough Council v The Greater London Council (1982) deemed other sections of the Act.
• The question, in this case, was whether the GLC should implement a cheap fare scheme on their transport systems, where the paying rates implied that the transport system is going to run at a loss. In this case, the decision revolved around the meaning of the word 'economic.'
• The House of Lords reviewed the entire Act, and in particular, another section which placed an obligation to make up as far as possible for any deficit.
• As a result, they determined that ' economic ' meant running on business lines and ruled that the policy of low prices was not legal because it involved intentionally running the transport system at a deficit, and this did not ensure running it on business lines.
10. Presumptions
• The courts might also make numerous judgments or conclusions about the law, but these are only the beginning. If the law clearly specifies the opposite, then there is no insinuation, and the assumption is rebuked. Key assumptions are:
a) A presumption against a change in the common law
• In other terms, until Parliament has made it clear in the Act that the common law has been modified, common law is supposed to remain.
• An instance of this occurred in Leach v R (1912), where the problem was whether a woman could be brought to bear testimony against her husband under the Criminal Evidence Act 1898.
• Since the Act did not explicitly say that this could happen, it was preserved that the common law presumption that a wife could not be compelled to give evidence was still in place. If specific terms were used to indicate that a wife was compelling, then the old common law would also not conform to it. It is now the stance in accordance with s 80 of the Police and Criminal Evidence Act 1984, which explicitly says that one spouse may be made to give testimony against the other spouse, in a crime of violence.
b) A presumption that men's rea is required in criminal cases
• The fundamental rule of common law is that nobody can be charged with a crime until it has been shown that they have the men's rea of committing the crime.
• Mens Rea is the intention behind an act; for example, if someone has to prosecute a defendant for murder, they will have to prove men's rea and actus reus, if both are not present the [erson will not be guilty of the crime, Mens rea is the intention behind the crime. For murder, it would be "to kill or cause grievous bodily harm to anyone independent of the fetus," while the actus reus is the act "killing."
• In Sweet v Parsley (1970), the offender was convicted with the administration of property used for marijuana smoking activities.
• The truth was that the complainant was the holder of the property that she had rented out, and the occupants had smoked marijuana there without her permission.
• She was obviously' preoccupied with the administration' of the property because weed was smoking here; however, because she had no knowledge of the situation, she had no mens rea.
• The fundamental problem here was whether men's rea was needed; the Act did not state that there is any need for knowledge of the issue. The supreme court held that she is not guilty because the inference that men's rea was needed was not disproved.
c) A presumption that the Crown is not constrained by any law unless explicitly stated in the law.
d) Presuming that the statute does not extend retrospectively implies that no Act of Parliament may refer to past events; each Act would usually only extend from the day of its entry into force.
11. Unified Approach
So why do all these laws go together, then? Sir Rupert Cross claimed that there was a single path to perception in such a way that:
• The judge will begin using the linguistic and normal or, where necessary, scientific meaning of words in the general way of the law.
• If the court deems that this would generate an outrageous outcome, he might use any second interpretation that the phrases are interested in the possibility of bearing.
• The court might well-read in words that he perceives simply implicit in the words contained in the law, and has limited potential to add, change and dismiss words to prevent a clause from becoming incomprehensible, impractical or ridiculous.
• In implementing those regulations, the court may call attention to a variety of aids and presumptions.
• But, this unified approach is centered on a literal approach, and it doesn't permit for a purposive approach. There seems to be a step to a purposive approach currently, while not all courts concur it should be used.
Should there be one preferred rule?
• It would also be useful if there were one specific technique of statutory interpretation that has always been used for the cases. For now, it is completely up to each individual judge who decides the case to enforce whatever law or solution he chooses.
• Some judges may have recourse to a strict law; other judges may have recourse to a mischief rule or a new, purposeful approach. It makes it hard for attorneys to give advice on the interpretation of the contested judgment of a judge in the Act of Parliament.
• At times, the judge can agree to use the literal rule for one situation and the mischief rule in another case. It began in Lord Parker, who used the mischief rule in Smith v. Hughes and then used the literal rule in Fisher v. Bell. It may well be that this assumes that the judge will decide what the outcome of the trial is and then chooses a law that results in that result.
• In 1969, the Law Commission recommended that Parliament enact an Act of Parliament that would imply that the mischief rule had to be enforced in effect to’ facilitate the general statutory intent.’
• But, this proposition was overlooked, even though Lord Scarman proposed a bill on the subject to the House of Lords in both 1980 and 1981.
• He was forced to abandon the plan for the very first time; the House of Lords opted for it for the second time, but the issue has never been presented to the House of Commons.
• There is a possibility that, even though there was an Act of Parliament, there will still be differences in the laws used by judges. It has been demonstrated in New Zealand, which has a statute that promotes implementation’ in the appropriate way to ensure that the purpose of the act is accomplished.’
• Although this would imply that this is achieved in every situation, one author pointed out it is often hard to find out which method was used, and ‘all that is being said is that certain judges had been relatively consistent at occasions in using the method they choose. ‘
12. The Purposive Approach
• That extends further than the mischief rule that the courts aren’t just trying to see what void was in the previous law; the courts are determining what they think the Parliament was supposed to achieve.
• Lord Denning was the founder of this approach in English law. His mentality toward more legislative interpretation is demonstrated because he said, in the case of Magor and St Mellons v Newport Corporation (1950):’ We stay here just to find out and implement the intention of Parliament because we do it better by filling in the gaps and making any sense of the law than by making it available to damaging evaluation.’
• Nevertheless, the judges in the House of Lords questioned his conduct as they considered the appeal in the trial. Lord Simonds found Lord Denning’s method’ a brazen usurpation of the statutory purpose under a thin veil of definition’ and pointed out that’ if a void is discovered, the solution resides in the amending act.’
Another judge, Lord Scarman, said:
When Parliament states one thing but intends another, it is not for the judiciary to amend it on the grounds of the traditional standards of the common law. In our community, the basic principle will certainly be appropriate. They are to be regulated not by the wishes of the Parliament, but also by the enactments of the Parliament.’
• This statement demonstrates the problem of the purposive approach. Should the judges refuse to obey Parliament’s clear language? How would they learn what the goals of the Parliament were? Opponents of the purposive approach argue that it is difficult to determine the purposes of the Parliament; only the terms of the Statute will reveal what the Parliament intended.
CASE EXAMPLE
• Another illustration of the use of the purposive approach is the case of R (Quintavalle) v Secretary of State for Health (2003). The House of Lords used the purposive approach in determining that species produced by cell nuclear replacement (CNR) had been identified as’ embryo’ in the Human Embryology and Fertilization Act 1990.
• Section 1(1)(a) of this Act specifies the’ embryo is a living human embryo where fertilization is complete.’ The CNR was not feasible in 1990 when the act was passed, and the question is that fertilization is not used in the CNR. Lord Bingham said the following:
• The duty of the court, inside the appropriate scope of definition, is to give consideration to the intent of the Parliament, Parliament could not have wanted to differentiate between embryos created by or without fertilization because it did not know the latter possibility.
• You can see why this goes beyond mischief rule during the time of the Act; Parliament found the mistake (or legal gap) of the possibility of abuse of embryos produced by fertilization. That was the purpose of the act.
• Parliament did not even know the difference in regards to the embryos of the CNR: they had not been created.
• As a result, the purposive approach is to ensure that the purpose of the act is provided effect. The confusion theory just points at the void in the law at the time the act was passed by the Parliament.
13. The European Approach
• The purposive approach is favored by most Countries in Europe when evaluating their own laws. It is the method introduced by the European Court of Justice in the interpretation of European law. The power of the European preference over the objective approach has influenced the English courts in two respects.
• First, they had to agree that the analytical method was the right one to use in coping with European law.
• Second, making use of the purposive approach to European law allows judges more used to it and is thus more applicable to English law.
14. Interpreting European Union law
• In which case, the legislation to be applied is focused on European law; it must be implemented by the courts in the context of the language and intent of European law.
• That is because the Treaty of Rome, which lays out the responsibilities of the Eu Member States, states that certain Member States have to’ take all necessary steps... to guarantee the satisfaction of their obligations.’
• In the Marleasing case (1992), the European Court of Justice ruled that this requires applying national law in every possible way in the context of the document and the purpose of European law.
• The Diocese of Hallam Trustee v Connaughton (1996) is an illustration of the English courts interpreting the law by understanding the intent of the applicable European Union rule.
15. Finding Parliament’s Intention
• There are a few instances where the courts can attempt to ascertain the purpose of the Parliament and other things that they can dig in addition to helping understand the law.
16. Intrinsic Aids
• Those are things within the law itself which can contribute to making the purpose simpler. The judge may find the long title, the short title, and the preamble (if any). Older laws typically have a preamble that lays out the intent of the Parliament to pass the Statute. Current laws typically do not have a preamble or have a rather short one: for instance, the 1968 Theft Act specifies that it is an Act to modernize theft legislation.
• The lengthy title may also explain in more detail the intent of the Parliament. The uncommon procedure has been taken in the Arbitration Act 1996, where the declaration of values of the act is laid out in paragraph 2.
• This is a major development in the legislative process and one that could both promote and support the implementation of the objective approach.
• Other important internal supports include any headings before a set of parts and any schedules added to the act.
• Often there are also marginal notes outlining the various sections, but this is not regarded as giving the clear intent of the Parliament, because they will have been inserted after the debates in Parliament and are only useful statements made by the printer.
17. Extrinsic Aids
• These are things that do not come within the framework of the act – it has always been understood that some alternate sources may further explain the meaning of the act.
- Earlier case law
- Dictionaries of the time.
- The historical setting
- Previous acts of Parliament on the identical issues
• Society has changed as far as most external help is concerned. Initially, the courts have very strict rules that some extrinsic supports were not to be regarded. But, the conduct of the courts has altered for the following three aids. The three primary extrinsic aids are:
- Hansard: Official report that was said in the Parliament during the consultation on the act
- Reports of law reform agencies, including the Law Commission, which contributed to the implementation of the act.
- Foreign agreements, legislation, or guidelines that have been enforced within English law.
The use of Hansard
• Till 1992, there had been a strict rule that the judges can not look at what had been said in the discussions in Parliament. A few years ago, Lord Denning had attempted to alter this restriction on Hansard in Davis v Johnson (1979), which included the reading of the Domestic Violence and Matrimonial Courts Act of 1976.
• He confessed that he had read Hansard before making his ruling, saying,’ Some might even say that courts must not pay much attention to what has been said in Parliament. They will run around in the dark for the purposes of the act without putting on the lamp. I do not agree with that view.
• In the very same case, the House of Lords opposed the idea of this, and Lord Scarman stated their explanations by stating:’ This content is an untrustworthy manual to the meaning of what has been enacted.
• This creates ambiguity, not clarification. The discussion and the strain of administrative accountability aren’t always favorable to a straightforward and objective interpretation of the significance of the statutory language.’
• Nevertheless, in Pepper v Hart (1993), the House of Lords modified the law and agreed that Hansard could be used in a practical manner. The case was unique in that seven judges considered the appeal rather than the standard five-member jury. Those seven judges would include the Lord Chancellor, who was the judge who disagreed through the use of Hansard. The plurality took the view that Hansard could be consulted. In his judgment, Lord Browne-Wilkinson said:
• The discriminatory rule must be modified in such a way as to allow access to legislative material in which:
a) the law is vague or unclear or contributes to ridiculousness;
b) the information on which it is centered consists of one or even more statements made by a minister or other supporter of the bill, along, if needed, with other parliamentary material needed to understand these statements and their effect; I wouldn’t go any further than this at the moment.
• Thus, Hansard may be viewed only if the sayings of the act are unclear or vague or result in ridiculousness. Even with that, Hansard should be used when the Minister has made a clear announcement passing legislation that would address the confusion or inconsistency.
• The Lord Chancellor rejected the use of Hansard on realistic terms, pointed out all the time and cost of Hansard’s work in each situation.
• The only occasion that Hansard is required to be used more broadly is when the court considers the legislation that has incorporated an international treaty or a European mandate into English law.
• This was found out by the Queen’s Bench Divisional Court in Three Rivers District Council and others v Bank of England (1996). In this kind of case, it is necessary to view the law fairly and compatible with any EU content, and the court may find ministerial declarations, even if the law does not seem to be vague or unclear.
• Hansard has been stated in a number of instances since 1992, sometimes even as there has been no confusion or irony.
• The Lord Chancellor’s projections on expenses have been verified by some experts, one of whom reports that 25 percent has been added to the bill.
• On any other time, it is evident that Hansard was not supportive or that the court would have reached the same conclusion in any case.
• In Jackson et al. v. Her Majesty’s Attorney General (2005), the Law Lords approved the use of Hansard as an aid to interpretation of the law.
They said:
• In some places, the Pepper v Hart concept is actually under some kind of legal storm. Part of that is due to the history of the court whose references to Hansard never support. In addition, that does seem to be related to a continued misconception of the limited role of ministerial comments in this area. It would be tragic if Pepper v Hart were now to be marginalized. The decision in Pepper v Hart is true in practice, dismissing as it did a self-created judicial paradox. There are times where ministerial declarations become helpful in action as interpretive assistance, maybe in particular as confirmatory aid.’
18. Law Reform Reports
• Just like with Hansard, the courts used to maintain that the findings of law reform organizations should not be accepted by the courts. Moreover, this principle was laid back in the case of Black Clawson in 1975 when it was approved because such a document should be considered in order to detect the error or gap in the legislation which the report-based laws were designed to address.
19. International Conventions
• In Fothergill v Monarch Airlines Ltd (1980), the House of Lords agreed that the initial convention must be accepted as it was probable that the true nature of the original purpose could have been lost in translation and application of the convention to our parliamentary process.
• In the same case, the House of Lords also held that any preliminary material or explanatory notes released by the International Convention could be considered by the English court.
• The logic for this was that that other nations permitted the use of such content, regarded as preparatory work, and therefore should be able to do so in order to achieve uniformity in the understanding of international rules.
20. Explanatory Notes
• In addition to the new Bills, introductory notes have been made since 1998. (Keep in mind that before the legislation becomes an Act of Parliament, it is referred to as a Bill.) Such documents are far more detailed than any prior explanatory memorandum.
• It is created by the government department accountable for the legislation. The reports clearly explain the context to any proposed legislation, outline the key clauses and, where the argument is difficult, provide the details that have been worked out.
• Such statements are potential new extrinsic assistance for statutory interpretation.
• They could be of benefit to the judges because they have to interpret the law. Notations, though, are not part of the law. This is probable to experience a dispute as to whether they will be used for statutory interpretation
• Judges who use the purposive approach are inclined to promote their usage. However, judges who use the literal approach will not be using them. Its because the explanatory notes are not designed to have legal force; they are not part of an act itself.
Example of the use of extrinsic aids
• Many extrinsic supports have been found in Laroche v Spirit of Exploration (UK) Ltd (2009). The claimant was hurt as a result of the abrupt crash of a hot-air balloon in which he was flying.
• The definition of the word ' aircraft' was very significant. Was a hot-air balloon in the concept of' aircraft?' If so, the argument would have declined because it had not been made within two years of the crash.
• In determining the case, the Court of Appeal first examined the concept of' aircraft' in the Pocket Oxford Dictionary. It described' aircraft' aircraft(s),airship(s)and balloon(s). The Court has reviewed the Air Navigation Order 2000 (a statutory instrument). This promoted the belief that a hot-air balloon was to be treated as an' aircraft.'
• In fact, the Court noted that English legislation had to be treated in a manner similar to that of international air travel, which is regulated by an international convention, the Warsaw Treaty.
• As a consequence of finding these three extrinsic supports, the Court decided that a hot-air balloon was deemed to be an' aircraft.' It indicated that the lawsuit expired as it had not been filed within the two-year time limit.
21. The Human Rights Act 1998
• S 3 of the Human Rights Act specifies that, to the extent possible, laws must be interpreted and applied in a form that is consistent with the rights of the European Convention on Human Rights. It refers to any situation where one of the freedoms is involved, but it does not extend where there is no human rights presence.
• A great illustration of the disparity in understanding of the Human Rights Act is R v Offen (2001). This case viewed the translation of the word ' exceptional' in the Crime (Sentences) Act 1997 where a person committing a second serious offense must be sentenced to life imprisonment unless there are' exceptional circumstances. 'prior to the enforcement of the Human Rights Act, the judges in R v Kelly (2000) had ruled that ' extraordinary ' was a common English term, saying: '
• To be exceptional, a case does not have to be unusual or unprecedented or very rare; but it can not be one that is frequently, commonly, or ordinarily experienced. ' It contributed to a rigid policy where criminals were sentenced to life imprisonment, even when the early were sentenced to life.
• In Offen, the Court of Appeal ruled that this limited path may contribute to a penalty becoming unreasonable and unfair and a violation of Articles 3 and 5 of the European Convention on Human Rights. To define the Criminal (Sentences) Act in a way consistent with the Convention, it was important to consider whether the defendant was a threat to the public.
• Because he would not do so, he was the exception to the normal rule in the Act, and this could be treated as exceptional circumstances so that a life sentence would not have to be enforced.
22. Conclusion
• The mindset of the English courts to interpretation has changed over the years by moving forward toward the objective approach and boosting the use of extrinsic aid.
• Nevertheless, the procedure used to evaluate a law is still left to the particular judge, and it is quite likely that one judge will take a literal view, while another judge might draw the opposite conclusion by using the incorrect rule or the analytical approach.
• This problem is highlighted in the final case. In R v Registrar-General, ex parte Smith (1990), the Court had to recognize s 51 of the 1976 Adoption Act, which indicated:
(1) Pursuant to subsections (4) and (6), the Registrar-General shall, on an application submitted in a specified manner by an adopted person, record the birth of which is held by the Registrar-General and who has reached the age of 18 years, provide that person with such details as is necessary to enable that person to acquire a certified copy of the birth certificate.' Subsection (6) claimed that, if the adoption took place before 1975, the Registrar-General could not provide the details unless the claimant had taken part in an interview with the counselor.
• The case includes Charles Smith's request for information to allow him to receive his birth certificate. Mr. Smith presented his case in the proper way and was willing to see a counselor. In the literal sense of the Act, the Registrar-General had to provide him with details, since the Act uses the phrase' must... provide.'
• The issue was that Mr. Smith had been found guilty of two murders and had been arrested in Broadmoor as a result of reoccurring periods of psychotic illness. A doctor thought it was possible that he might be abusive to his real parents. This was a challenge for the Court: should the plain sense of the terms be enforced in this situation? The judges of the Court of Appeal decided that the case called for an objective approach, saying that, despite the simple language of the Act, Parliament couldn't have designed to promote serious crime.
• Consequently, in spite of the danger to the natural mother of the claimant, if she revealed her identity, they held that the Registrar-General did not have to provide any details.
• It is interesting to note that the law is itself a rule-based construction and that these rules are partly based on social and ethical rules. It is reasonable for the statutory interpretation to be labeled' Rules.' Laws are used in many things, from football games to the mark used in a given working environment.
• We are responsible for regulating and directing conduct or acts against which activity or behavior can be measured and evaluated. Rules have set a standard. In general, it is possible to apply to cases without having to reassess the inherent value of each case; this provides for a consistent outcome that can be both predicted and stable.
• There is, nevertheless, the possibility that, as the legislation is articulated in words, there are variables that will affect the understanding and execution of the legal rules, but that, despite having a set of guidelines to obey in the interpretation of the rules, the outcome does not imply rigidity, and it is probable for the consequence to be a "false" result.
• But, the rules of the statutory interpretation are diverse, it is not a single set rule, and thus the most effective rule should also have adhered in the context of the case. Currently, the regulations allow for reflection and are the reference point for the most appropriate action to be taken to uphold the law.
Answer structure: P1You will be marked based on your commentary and comparison in the law, backed by case laws. What you need to do is:1. Introduction (mention all that you will discuss in the essay add case laws and laws in brackets for each rule, describe the question)2. describe the law3. explain the law4. give case laws5. compare and comment on which one is better, and why is it better?6. Give the advantages and disadvantages of both.7. Explain which one you will choose. |
Keep in mind how to interpret the law using these rules of interpretation, rules of language, and the extrinsic and intrinsic aid, and you are good to go for that A. |