🕴 Flashcards
What is statutory interpretation?
The process where a judge works out the meaning of a statute and applies the law to the case with parliament intention
What is stare decisis
Let the decision stand
When is statutory interpretation created?
When the law is confusing/ambiguous
5 problems with statutory interpretation
- Broad terminology
- Ambiguity
- Drafting error
- New developments
- Changes in use of language
What is meant by broad terminology?
Some words have the purpose of covering a range of situations ( Dangerous dogs act- Brock v DPP 1993- establish what ‘type’ meant)
What is meant by ambiguity?
Some words have different meanings
What is meant by drafting error?
Word is said in the wrong context (rare because most are amended through parliamentary process)
What is meant by new developments?
New issues within society/ developments in society
What is meant by changes in use of language?
Language alters as society changes so words have different meanings now than before
4 rules/ approaches to statutory interpretation
- Literal rule
- Golden rule
- Mischief rule
- Purposive approach
What is the literal rule?
- Give words their actual meaning (dictionary definition)
- Most popular rule
- Best way to interpret will of parliament m, even if it leads to an absurd result
Cases linked to the literal rule
- Whitely v Chappell 1868- voting in name of dead person, not guilty
- Berriman case 1946- railway worker killed whilst doing maintenance, couldn’t claim damages
- Fisher v Bell 1961- flick knife in shop window, offensive weapons act 1959, not guilty
Advantage of literal rule
Respects parliamentary sovereignty
3 disadvantages of literal rule
- Can be argued you aren’t doing what parliament intended
- Can lead to absurd decision
- Tries to have a perfect meaning for a word even though there isn’t only one meaning for a word
What is the golden rule?
Gives words their true meaning when the literal rule gives an absurdity ( only used where literal rule has been tried and failed)
Cases linked to the golden rule
- R v Allen 1872- bigamy case
- R v Pawlicki 1992- firearms at robbery (literal= not guilty, golden= guilty)
- Adler v George 1963- In the vicinity (literal= not guilty, golden= guilty)
2 advantages of the golden rule
- Can prevent absurdity cause by literal rule
2. Can give words their true meaning
Disadvantage of golden rule
Law commission 1969 states the rule provides no meaning of an absurd result (how can you define absurdity and know when to use golden rule)
What is the mischief rule? ( and what 3 questions should be considered?)
Laid down in Heydons case in the 16th century.
Judges should consider
1. What was the law before the statute was passed?
2. What was the problem the statute was trying to remedy?
3. What was the remedy Parliament was trying to provide?
Judges can use this rule whenever they want
Cases linked to mischief rule
- Smith v Hughes 1960- prostitution case, street offences act 1958
- Elliot v Grey 1960- Road traffic act 1930 uninsured driver can’t be on the road
- RCN v DHSS 1981- Abortion act 1967 only legal if performed by registered medical practitioners, nurses are allowed to
2 advantages to the mischief rule
- Helps to avoid absurdity and uncertainty
2. Judges decision reflects parliaments decision
Disadvantage of mischief rule
Judges are guessing parliaments decision therefore they’re making the law, which goes against parliamentary sovereignty
What is the purposive approach?
Finding out the purpose of the act ( usually used for human rights and EU law)
Who’s the champion of the purposive approach?
Lord Denning ( Magor an st mellons v Newport corp 1950) - filling in the gaps of parliaments intention
Example of the purposive approach
Jones v Tower boot 1970’s- abused in workplace, race relations act 1976 protects people from ethnic minorities
Advantage of the purposive approach
Allows the law to reflect parliaments true intention
Disadvantage of the purposive approach
Judges are making the law which goes against parliamentary sovereignty
What is the human rights act 1998
- Protects an individuals human rights
- Allows anyone who believes a public authority has removed their human rights to take their case to court
- Allows an individual to challenge laws
If a law is challenged what are the 2 options available to the court?
- Use section 4
2. Use section 3
What is section 4 HRA?
- making a declaration of incompatibility
- judge applies the ‘bad’ law to a case then sends it back to parliament to be amended
- very rare
What is section 3 HRA?
- allows judges to interpret the law as far as possible
- can change the wording of a section to protect your human rights
What are the 2 conflicting approaches seen in R v A?
- Lord Steyn- allow judges to interpret the law for the purpose of protecting your human rights
- Lord Hope- use the teleological approach
What is the teleological approach?
European in nature and is a wide sort of law. Makes sure it’s conventional with your human rights
What are the 4 points outlined in Ghaidan v Godin Mendoza 2004 on the courts current approach?
- Consider whether the law is incompatible with human rights
- Consider wether normal statutory interpretation rules can be used
- If not use s.3 in a creative fashion and avoid using s.4 unless it would result in changing a fundamental aspect of law (use teleological approach)
- If s.3 doesn’t work then make a declaration of incompatibility (s.4)
Judges need to discover the meaning of words. What 2 aids can be used?
- Intrinsic aids
2. Extrinsic aids
What are the 3 intrinsic aids?
- The statute itself
- Rules of language
- Presumptions
What’s included in the statute itself?
To decide what a provision of the act means the judge can compare it to other provisions. The court can consider:
- The long title
- The short title
- The preamble
- Headings
- Interpretation sections
What’s included in rules of language?
- Ejusdem generis ( of the same type)
- Expressio unius est exclusio alterius ( excludes any alternatives)
- Noscitur a sociis ( names by association)
What’s included in presumptions?
Courts are assume certain points are implied in all legislation:
- Statutes don’t change common law
- Existing rights are not to be interfered with
- Statutes don’t affect the queen ( unless they say so)
What are the 6 extrinsic aids?
- Historical setting
- Dictionaries and textbooks
- Reports
- Treaties
- Interpretation act 1978
- Use of Hansard
What approaches use historical setting?
Mischief rule and purposive approach
What approaches use dictionaries and textbooks?
Literal and golden rule
What approach uses reports?
Mischief rule
When are treaties used?
When following the presumption that parliament doesn’t legislate in such a way that the uk would breach its international obligations
What’s the interpretation act 1978?
Gives meanings of different rules (he/she/they can be said as he in acts)
When can Hansard be used?
First time Hansard was used was in Pepper v Hart. Can only use if:
1. Legislation is ambiguous
2. Material relied on consists of one or more statements by promoter of the bill
3. The statements relied on are clear
Can only be used for literal and golden rule
Evaluation of Hansard
- Couldn’t be used prior to 1992
- 1979 Davis Johnson, Denning tried stopping the ban because Hansard gives judges a light
- Lord Scarman and HOL denied this as Hansard isn’t clear and could lead to conflict
- 1993 Pepper v Hart accepted Hansard (used only if words are ambiguous)
2 advantages of Hansard:
- Usefulness
2. Media reports
4 disadvantages of Hansard:
- Lack of clarity
- Time and expense
- Parliamentary intention
- Not helpful
What was Hansard used for in Wilson v Sec of state for trade industry 2003?
To look for meaning of words, not to read general debates seeing why parliament passed the act
