2A.3.1 Rules of statutory interpretation

Question 1

What is Statutory Interpretation?

Answer 1

The meaning of the law in Acts of Parliament should be clear, but this isn’t always the case. Statutory Interpretation is used by courts to decide the exact meaning of a particular word or phrase.

Question 2

Sources that could be used to find definitions

Answer 2

• Hansard
• Dictionary definition
• Definition in section in the act

Question 3

Three rules of interpretation

Answer 3

• The literal rule
• The golden rule
• The mischief rule

These rules take different approaches to interpretation and some judges prefer to use one rule, while other judges prefer another rule. This means that the interpretation of a statute may differ according to which judge is hearing the case.
However, once an interpretation has been laid down, it may form a precedent for future cases under the normal rules of judicial precedent.

Question 4

The Literal Rule

Answer 4

The traditional approach for statutory interpretation used by a judge.

This is where a judge will give words their plain, ordinary or literal (dictionary) meaning, even if the result is not very sensible.

A judge will use a dictionary from the time of the statute to find the appropriate definition.

The use of the rule has been criticised because it can lead to what are considered harsh, absurd or unjust decisions.

Question 5

Cases for the literal rule

Answer 5

• DPP v Cheeseman
• Whitley v Chappell
• Fisher v Bell
• LNER v Berriman

Question 6

[Literal rule]

Whitley v Chappell

Answer 6

The law said “it is an offense to impersonate any person entitled to vote”. D voted in a general election and pretended to be a person whose name was on the electoral register but was dead. D was found not guilty as dead people are not “persons entitled to vote”.

Question 7

[Literal rule]

DPP v Cheeseman

Answer 7

The Town Police Clauses Act (1847) said it was an offense for people to expose themselves willingly and indecently in public to “passengers”(passers-by). Undercover police were stationed in a public toilet. Mr Cheeseman exposed himself to them. The court decided that Mr Cheeseman was not guilty because the police were not “passengers” and instead were stationed there for their work.

Question 8

[Literal rule]

Fisher v Bell

Answer 8

The Offensive Weapons Act (1959) said it was an offense to offer flick knives for sale. D had flick knives in his shop window and was charged with offering these for sale. D found not guilty because (under contract law) the items in the window were an “invitation to treat” rather than an “offer for sale”.

Question 9

[Literal rule]

LNER v Berriman

Answer 9

The law said that a “look-out should be provided for men working on or near the railway line for the purposes of relaying or repairing”. Mrs Berriman tried to claim compensation was owed because her husband was killed at work whilst oiling the points on the line and there was no lookout. The court decided that no compensation was owed because her husband was “maintaining” the track rather than “repairing” it.

Question 10

Judges supporting the literal rule

Answer 10

• “If in the words of the act are clear then you must follow them even if they lead to manifest absurdity” – Justice Esher.
• Anything other than the literal rule is “a naked usurpation of the legislative function under the thin disguise of interpretation” – Lord Simmonds.

Question 11

Judges against the literal rule

Answer 11

• The literal rule is “mechanical and divorced from realities of the use of language” – Professor Michael Zander.
• “We do not sit here to pull apart the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to some destructive analysis.” – Lord Denning.

Question 12

Advantages of the literal rule

Answer 12

1) Parliamentary Sovereignty
2) The law is certain
3) The literal rule can highlight problems in the statute

Question 13

How is certainty an advantage of the literal rule?

Answer 13

The literal rule helps the public determine whether they have broken the law or not.

It helps lawyers to advice clients on the likely outcome of legal cases.

Question 14

How is the ability to highlight problems in statutes an advantage of the literal rule?

Answer 14

If problems are highlighted by the literal rule, Parliament could repeal the act or amend/change the law.

EXAMPLE: The case of Fisher v Bell highlighted problems to parliament. As a result of this case, the law (Restriction of the Offensive Weapons Act 1961) was amended to “exposes or has in possession for the purpose of sale or hire”. – This law prevents these sorts of displays in windows of shops.

Question 15

How is parliamentary sovereignty an advantage of the literal rule?

Answer 15

• Only parliament should make the law.
• Judges should only apply the law written by parliament.
• MPs are democratically elected whereas judges are not.

Question 16

Disadvantages of the literal rule

Answer 16

1) Assumes the act is perfectly written
2) Leading to absurd outcomes
3) Can lead to unfair outcomes

Question 17

The literal rule assumes the word is perfectly written. How is this a disadvantage?

Answer 17

The meaning of words changes over time.

For example, in DPP v Cheeseman where “passengers” originally meant “passers-by”.

Question 18

How are absurd or unfair outcomes disadvantages of the literal rule?

Answer 18

Judges may apply a meaning that parliament was not intending.

EXAMPLE: In LNER v Berriman, the literal interpretation denied the widower any compensation.

Question 19

The Golden Rule

Answer 19

The golden rule is a modification of the literal rule as it starts by looking at the literal meaning of words but the judge is then allowed to avoid an interpretation that would lead to an absurd result.

Question 20

Two approaches under the Golden Rule

Answer 20

• Narrow approach
• Wide approach

Question 21

Narrow Approach

Answer 21

Under the narrow approach, the court may only choose between the possible meanings of a word or phrase to avoid unjust/absurd outcomes.

Cases:
- Allen
- Adler v George

Question 22

[Golden rule - narrow]

R v Allen

Answer 22

Defendant was charged with bigamy.

“To marry” has two meanings – to become legally married or to go through the marriage ceremony. Using the first meaning, nobody could ever be convicted because the second marriage would always be legally invalid. Therefore, the judge chose the second meaning so he could find the defendant guilty.

Question 23

[Golden rule - narrow]

Adler v George

Answer 23

The Official Secrets Act 1920 made it an offence to obstruct Her Majesty’s Forces “in the vicinity” of a prohibited place.
D caused an obstruction inside of the prohibited place.

D argued that he was not guilty as the literal wording of the act did not apply to anyone in the prohibited place, it only applied to those “in the vicinity”. i.e. Outside but close to it. Using the golden rule, the Court found the D guilty as it would be absurd if those causing an obstruction outside the prohibited place were guilty, but anyone inside were not.

Question 24

Wide approach

Answer 24

Where the word only has one meaning but the literal meaning would result in absurdity, a judge can ‘read words into the statute’.

Cases:
- Re Sigsworth

Question 25

Re Sigsworth

Answer 25

D murdered his mum, who had no will. Under the literal interpretation of the Administration of Estates Act 1925, he would inherit from her as he was her “next of kin”. The judge thought he should not benefit from his crime and so read into the Act “but not where the issue has killed the deceased”.

Question 26

Advantages of the Golden Rule

Answer 26

1) Narrow approach upholds parliamentary sovereignty.
2) Broad approach prevents unfair/unjust decisions.
3) Narrow approach prevents absurd decisions.

Question 27

Disadvantages of the Golden Rule

Answer 27

1) Subjective nature of “what is absurd?”
2) Unpredictable
3) Broad approach allows judges to make the law.

Question 28

The mischief rule

Answer 28

The mischief rule gives a judge more discretion when interpreting legislation than the literal or golden rules.

The definition of the mischief rule comes from Heydon’s case (1584), where it was said there were four points the courts should consider.

Question 29

[Mischief rule]

What were the four points that the courts should consider for the mischief rule?

• As held in Heydon’s case (1584)

Answer 29

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 a remedy for?
3) What was the remedy parliament enacted to resolve the mischief?
4) The true reason of the remedy

Under this rule, therefore, the court should look to see what the law was before the Act was passed in order to discover what gap ‘or mischief’ the Act was intended to cover. The court should then interpret the act to ensure the mischief is resolved.

Question 30

Key terms associated with the mischief rule

Answer 30

“Mischief”: The trouble/harm that parliament wanted to stop.

“Remedy”: The act created by Parliament to prevent the behaviour.

“Filling in the gaps”: The mischief rule looks back to the gap in the previous law and interprets the act as to cover the gap.

Question 31

Cases for the mischief rule

Answer 31

• Smith v Hughes
• Royal College of Nursing v DHSS
• Eastbourne Borough Council (EBC) v Stirling

Question 32

[Mischief rule]

Smith v Hughes

Answer 32

It was against the law for “a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.” From their windows and balcony, the women were attracting the attention of men by calling to them or tapping on the windows.

Under the literal rule, the Ds argued they were not in a street or public place. Whereas they were found guilty under the mischief rule.

Question 33

[Mischief rule]

Royal College of Nursing v DHSS

Answer 33

The Abortion Act 1967 stated abortions could only be carried out by a doctor.

However, improvements in medical technique meant that the first part of the procedure was carried out by a doctor, but the second part was performed by nurses without a doctor present.

The court decided the procedure was lawful because the mischief parliament was trying to remedy was the number of illegal abortions carried out.

Question 34

Eastbourne Borough Council (EBC) v Stirling

Answer 34

A taxi driver was charged with “plying for hire in a street” without a licence to do so.

Using the literal rule, the D would have been found not guilty because his vehicle was parked on a taxi rank on the station forecourt, and not on a street.

Using the mischief rule, the D would be found guilty. Although the taxi was on private land, he was likely to get customers from the street. The court referred to Smith v Hughes and said that it was the same point.

Question 35

Advantages of the mischief rule

Answer 35

• Avoids injustice by “filling in the gaps” (Lord Denning)
• Promoted the original purpose of the act (Parliament’s intention)
• Flexible and allows law to adapt.
• In 1969 the Law Commission suggested that it should be the only rule of statutory interpretation.
• Helps to yield more fair and less absurd results when compared to the literal rule.

Question 36

Disadvantages of the mischief rule

Answer 36

• Undemocratic and allows judges to make the law.
• Judges’ personal views can influence the decision.
• Makes it difficult for solicitors to advise their clients on likely outcomes, and for people to know if they are breaking the law.
• Can be difficult to identify the intentions of Parliament. (Can be hard to tell via Hansard – there are lots of different arguments in the debate).

Question 37

Purposive approach

Answer 37

With the purposive approach, the judges decide what they believe Parliament meant to achieve and giving effect to that purpose.

It is a more modern version of the mischief rule – instead of looking at the problem with the common law (the mischief), it looks at what parliament wanted to achieve (its intention).

Due to the principle of Parliamentary Supremacy, judges should be interpreting and giving effect to the words of an Act, they should not be making law themselves.

It is also difficult to discover parliament’s intentions; only the words of the statute can show what Parliament wanted. Looking at Hansard would show both sides of the debate.

Question 38

How is the mischief rule different to the purposive approach?

Answer 38

Mischief rule looks back at the problem with the common law (the “gap”/”mischief”). - Negative approach

Purposive approach looks back at what parliament wanted to achieve – Positive approach

Question 39

Where is the purposive approach most used?

Answer 39

This approach to interpretation is used in the European Union, when interpreting EU law. Judges also use the purposive approach when applying the Human Rights Act (1998) to legislation. - The courts are under an obligation to ensure that English law is compatible with the European Convention on Human Rights.

Question 40

Cases for the purposive approach

Answer 40

• R v Registrar General ex parte Smith
• Jones v Tower Boot Company
• R (Quintavalle) v Secretary of State for Health

Question 41

Jones v Tower Boot Company

Answer 41

A black worker brought proceedings against his employer under the Race Relations Act 1976 for the racial abuse he suffered from his colleagues. A tribunal dismisses his case as the racial abuse workmates were not literally acting in the “course of their employment”. This appeal was allowed by the Court of Appeal because the purpose of the act (parliament’s intention) was to eliminate racial discrimination and therefore his claim was unsuccessful.

Question 42

R v Registrar General ex parte Smith

Answer 42

Smith was adopted as a baby. He was convicted of two murders (as an adult) and was detained in Broadmoor as he suffered from reoccurring bouts of psychotic illness. Smith wanted to obtain his birth records/certificate. Under the literal rule, the D should have an “absolute right” to his birth records from the Registrar General, the Adoption Act 1976 uses the phrase “shall … supply”. The court denied the D access to is record because Parliament did not intend to put the natural mother at risk (he may have killed her, based on his past).

Question 43

Advantages of the purposive approach

Answer 43

• Provides consistency across Europe.
• Gives effect to the true intention of parliament.
• Used to produce fair and reasonable outcomes.

Question 44

Disadvantages of the purposive approach

Answer 44

• Allows for judicial creativity – could lead to inconsistent interpretations of acts.
• Risk of judicial law making, which is undemocratic and against parliamentary sovereignty, and therefore the separation of powers theory.
• Finding the intention of parliament can be difficult.