8 - Law making : Statutory interpretation

Question 1

When may statutory interpretation be required?

Answer 1

• ambiguous (fisher v bell 1961)
  words are too broad
  progress in tech may mean that words may need to be reconsidered
  drafting error (r v burstow 1997)

Question 2

Which rule may be used?

Answer 2

there is no requirement for which to use, judges can use what they prefer
bodies such as the judicial studies board may issue guidelines

Question 3

Literal rule

Answer 3

where judges use the exact wording when interpreting a statute no matter how absurd the outcome is

Question 4

Case for the literal rule

Answer 4

whitelely v chappel 1868 - a statute made it illegal to impersonate any man able to vote, the D impersonated a dead man who couldn’t vote so not guilty

Question 5

Advantage of the literal rule

Answer 5

respected parliamentary sovereignty
creates certainty of the outcome

Question 6

Disadvantages of the literal rule

Answer 6

May lead to an unjust result
Assumes every act was drafted perfectly

Question 7

The golden rule

Answer 7

an extension to the literal rule, where words are given their literal meaning unless the result is absurd

Question 8

Case for golden rule

Answer 8

re sigworth 1935 - son murdered mother and she didn’t have a will, the golden rule meant that he was not entitled to anything

Question 9

Advantages of the golden rule

Answer 9

avoids absurd results while still respecting parliamentary sovereignty

Question 10

Disadvantages of golden rule

Answer 10

can lead to inconsistency
no definition of what actually is an absurd result

Question 11

Mischief rule

Answer 11

gives more power to the judges in deciding the gap in the previous law and interprets the act to cover the gap

Question 12

What is a literal approach

Answer 12

looks at what the statute meant literally

Question 13

What is a purposive approach

Answer 13

the judge looks at the wider meaning and tries to work out what Parliament meant by creating the Act in the first place

Question 14

What kind of approach does EU law use

Answer 14

purposive

Question 15

What is the difference between a narrow approach and a wide approach in the golden rule?

Answer 15

Narrow Approach
Judge can decide between two possible meaning
Wider Approach
It allows judges to interpret to avoid unfair meaning

Question 16

Heydons law 1584

Answer 16

generated the mischief rule
The law should look at:
Old case law
what the law was before the Act was passed so that it can be discovered what defect or “mischief” was meant to covered.
How Parliament intended on remedying the mischief
The Court should then interpret the Act in such a way that the gap is covered.

Question 17

case for the mischief rule

Answer 17

Smith v Hughes 1960
Street Offences Act 1959 – an offence for a prostitute to loiter or solicit in a street or public place
6 women were charged but pleaded not guilty on the grounds that they were not on the street or public place but in windows and on a balcony.
Using the Mischief Rule the Judge held them to be guilty as the Act was designed to “clean up the streets”

Question 18

Advantages of the mischief rule

Answer 18

Promotes the purpose/spirit of the law
Emphasis is that the gap in the law is filled so that it produces a just result
Judges interpret the law in the way Parliament meant it to work The Law Commission prefers judges to use the Mischief rule
Allows judges to take into account the changes in society RCN v DHSS – also saves time as it prevents Parliament having to make constant amendments to law

Question 19

Disadvantages of the mischief rule

Answer 19

Risk that Judges try and fill the gaps with their own ideas / impose their own morality
Unelected Judges making law
Can lead to uncertainty
It is more limited that the purposive approach and is therefore perhaps outdates
Sometimes difficult to actually work out what the “Mischief” actually is

Question 20

Purposive approach

Answer 20

Goes beyond the mischief rule – Judges don’t just look for the gap they look at what Parliament meant to achieve generally

Question 21

Case for purposive approach

Answer 21

R v Registrar General ex Parte Smith 1990
S51 Adoption Act 1976 – must allow someone who has been adopted and 18 acsess to their birth certificate
D – applied however he had been convicted of 2 murders and was in Broadmoor mental hospital Doctors thought he might harm his natural mother if he traced her.
Literal/golden rule Judges would have to allow him access to the information
Purposive approach Judges decided that Parliament could never have wanted to promote a potential crime and thus Mr Smith wasn’t given the information

Question 22

Advantages of purposive approach

Answer 22

Leads to justice in individual cases
Broad approach which allows the law to cover more situations than applying words literally
Useful where there is new technology / advancements – allows judges to interpret Parliaments wishes in line with changes, stopping the need for Parliament to create another new Act
Allows Judges to use discretion

Question 23

Disadvantages of purposive approach

Answer 23

Judges don’t follow the clear words of Parliament
How do Judges really know what Parliaments intentions really are?
Allows unelected judges to make law
Leads to uncertainty because lawyers can never be exactly sure on the judges ruling

Question 24

intrinsic aids to statutory interpretation

Answer 24

inside the act such as
Details contained in the statute itself that help make its meaning clearer
Long and short title
Preamble (detail at the start of an Act)
Headings
Schedules that are attached to the Act
Notes in the margin

Question 25

extrinsic aids

Answer 25

outside of the act
historical context of the act
dictionaries or textbooks
previous practise
treaties in international law
the interpretation act 1978 gives some aid

Question 26

Impact of Eu law on statutory interpretation

Answer 26

Purposive approach is preferred by EU and ECJ

Any English law which has been passed because of EU Law must be interpreted by using the purposive approach

The fact that Judges are using the purposive approach for EU law means that they are more likely to use it for English law

Question 27

Impact of the human rights act 1998 on statutory interpretation

Answer 27

states that as far as is possible, legislation must be read and given effect in a way that is compatible with the rights in the european convention of human rights

Question 28

Mendoza v ghaidan 2002

Answer 28

Rent Act – applies when a tenant dies. If the tenant had been living in the property with their spouse then the spouse has the right to take over the tenancy. Act also applied to unmarried partners. In this case it involved same sex partners. It was held that they didn’t have the same rights. However this was changed on appeal to take into account HRA 1998 which holds that same sex partners do have the same rights as everyone else.