Chapter 4: Statutory interpretation

Question 1

What is statutory interpretation?

Answer 1

Judiciary has the ability to interpret or construe statutes to ‘give effect’ to Parliament’s intention

Question 2

What are the problems/issues in interpreting statutes?

Answer 2

1. Nature of language - lacks precision when draftsperson refrains from using words that they regard as implied automatically
2. Use of broad terms (wide meaning) - ‘vehicle’, ‘family’
3. Drafting errors or printing errors
4. Unforeseen developments (i.e. current developments, crypto currenncy)
5. Intention of Parliament is not very clear
6. Meaning of broad terms may change over time

Question 3

What are the traditional/general rules of statutory interpretation?

Answer 3

1. The ‘legal meaning of a statutory provision is mainly up to the discretion of the judges
2. The ‘three rules of interpretation’ are appraoches to SI that are practiced.
3. Interpretation Act 1978 - does not provide notes for interpretation but provides standard definitions of common provisions

Question 4

What are the ‘three rules of interpretation’

Answer 4

1. Literal Rule
2. Golden Rule
3. Mischielf rule

Question 5

What is the literal rule?

Answer 5

Interpreting according to the literal meaning the words used in the Act. Even if it leads to absurdity. (Seen in the words of Lord Esher MR in R v The Judge of the City of London Court)

Question 7

What case applied the Literal Rule

Answer 7

R v Magnnis

• ‘Supply’ was interpreted literally although Maginnis was not a drug pusher

Question 8

What are the advantages and disadvantages of the literal rule?

Answer 8

Adv.

1. Encourages precision in drafting - The best way to give effect to Parliament’s intention is to stay very close to the words that Parliament actually used.
2. Certainty
3. Respects Declaratory theory and Parliamentary Supremacy

Dis

1. Extented emphasis on the literal meaning of statutory provisions without considering the meaning of the wider context
   2.Leads to absurd results, may go against Parliament’s intention
   3.Injustice to the parties
   4.Ignores the limitation of language

Question 9

What is the golden rule

Answer 9

A modification of the literal rule. Where judges start by adopting a literal interpretation, but if this leads to an ‘absurd’ result, then they can substitute a reasonable meaning in the light of the statute

There’s no absurdity in the golden rule

Question 10

What was the case that applied the golden rule?

Answer 10

Re Sigsworth [1935]

1. Son murdered the mother, she had not made a will
2. He was supposed to be ‘next of kin’ under law
3. But court applied the golden rule as literal rule would lead to absurd result
4. Was entitled to nothing

Question 11

What are the adv and dis to the golden rule?

Answer 11

Adv

1. Prevents injustice and absurdity
2. Reflects Parliament’s true intention
3. Remedies the gap in the legislation
4. Prevents Parliament from having to pass amending legislation

Dis
1. What is absurd is very subjective - London and North Eastern Railway v Berriman (1946)
2. It shows some drift of the power from Parliamentary control to judicial discretion
3. Certainty

Question 12

What is the mischielf rule? What was the case and the 4 things that need to be considered/asked?

Answer 12

The oldest approach to statutory interpretation. It involves several steps to reach an interpretation. Laid out in Heydon’s Case, where it stated the true interpretation of all statutes need to satisfy 4 elements

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 adequately deal?
3. What remedy Parliament resolved and appointed to cure the defect?
4. The true reason for the remedy

Question 13

What case applied this the mischielf rule?

Answer 13

Smiths v Hughes [1960]

Facts
1. Street Offences Act 1958 made it a criminal offence for prostitutes to ask for potential customers in a street or public place
2. Accused was in a house, tapping on window to get attention

Held

1. Literal rule would have no offence
2. But Judge applied the mischief rule and considered what ‘mischief’ the Act was aimed at

Question 14

What are the adv and dis of the mischief rule?

Answer 14

Adv

1. Helps avoid absurdity and injustice
2. Promotes flexibility
3. Allows the judge to** find the ‘mischief’** that parliament was concerned to remedy by passing legislation (the prior intention of parliament)
4. Allows judges to interpret status in the light of changing social, economic, and technological circumstances

Dis

1. It allows judges to apply their own opinions and prejudices (an infringement on the separation of powers)
2. The increased role of the judges means that their views and prejudices can influence the final decision (biasedness)

Question 15

What are the 2 kinds of appraoches to SI?

Answer 15

• Purposive appraoch
• The impact of HRA 1998 on Statutory Interpretation (ECHR approach)

Question 16

What is the purposive appraoch

Answer 16

Taking a wider view (than the mischief rule) and essentially trying to decide what Parliament intended to achieve in passing an Act (Hansard). This approach encourages the judge to look for the ‘spirit of the Act’, and to read words into or out of the Act when this is necessary

Question 17

What is the case that applied the purposive approach?

Answer 17

Pepper v Hart [1993]

1. HOL accepted that the courts are ready to adopt an approach that seeks to give effect to the ‘true purpose’ of legislation
2. And as a result will consider extraneous (irrelevant) material that has a bearing on the background to the legislation by referring to Hansard

Question 18

What are the adv and dis of the purposive approach?

Answer 18

Adv

1. Statutes may be applied logically, prevents absurd interpretations
2. Reflects the true intention of Parliament

Dis

1. The further judges drifts from the language of the Act, the more likely they are to be engaging in a legislative or quasi-legislative function

Question 19

What is the impact of HRA 1998 on Statutory Interpretation (ECHR approach)

Answer 19

When Government introduced HRA 1998, Acts of Parliament should interpret, as far as possible, to be compatible with the convention.

Question 20

What are the 2 important sections of the HRA that state that legislation must incorporate the convention

Answer 20

Section 3(1) of the HRA 1998

• (known as the interpretive obligation) which provides that: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights

Section 4(2) of the HRA 1998

• If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility

Question 21

What is the case that applied the (ECHR approach)

Answer 21

Ghaidan v Mendoza [2004]

Facts

1. HOL was faced an issue of whether a surviving homosexual partner could be the spouse of a deceased tenant, for the purposes of succeeding to a statutory tenancy under the provisions of the Rent Act 1977

Held

1. Possible to ‘read down’ the 1977 Rent Act under the HRA 1998 s.3 so that it was compliant with the rights in the Convention (Art 14 discrimination)
2. Interpreted the words ‘as his or her wife or husband’ in the Act as meaning ‘as if they were his or her wife or husband’
3. The provision of the Rent Act 1977 should be construed (in accordance with the HRA 1998) so as to give equal succession rights to a homosexual couple living ‘as if’ they were husband and wife

Question 22

What are the limitations to Section 3 of the HRA. What is the case that mentioned these weaknesses?

‘As far as possible’

Answer 22

Bellinger v Bellinger [2003]

1. HOL held that it was not ‘possible’ to use s.3 to interpret the Matrimonial Causes Act 1973 Act to be compatible with Convention rights
2. To use s.3 in this way would bring about a major change in the law (on the legal recognition of gender reassignment), and would raise issues that were properly a matter for parliament, not the courts

Question 23

What are the limitations to Section 4 of the HRA, and what are the effects of DOI?

Declaring incompatible with the convention

Answer 23

• Where the courts are unable to interpret domestic legislation in a way that is compatible with the ECHR, the senior courts may make a declaration that the legislation in question is not compatible with the rights provided by the ECHR

Effect
1. Does not affect the validity of the legislation - Although there is no legal obligation on the Government to take remedial action following a declaration of incompatibility, such a declaration creates pressure for action to be taken (by parliament)
2. In most cases where there has been a declaration of incompatibility, the Government has brought forward amending legislation by way of a remedial order under s.10 of the HRA 1998 or through ordinary legislation

Question 24

What is the case that showed the effects of DOI

Answer 24

R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC

1. Found that Civil Partnerships Act 2004 was incompatible with Convention rights
2. Court found that the fact that different-sex couples could not enter into civil partnerships breached their rights under Article 14 (non-discrimination) when read with Article 8 (respect for private life)
3. Led to the Civil Partnerships, Marriages and Deaths (Registration etc.) Act 2019

Question 25

What is the unified contextual approach (Sir Rupert Cross)

Answer 25

It’s not confined to statute, but must read the statute in its context (practical/holistic way of interpretation)

1. First considers the ordinary meaning of the words in the general context of the statute, a broad view being taken of what constitutes the “context” - Internal context & external context
2. Then move to consider other possibilities where the ordinary meaning leads to an absurd result

Question 26

What is the case that used the unified contextual appraoch?

Answer 26

R v G and another [2003]

1. HOL explored every authoritative work on the issue on mens rea in Criminal Damage (interpreting Section 1(1) Criminal Damage Act 1971)
2. They explored the ‘context’ vigorously
3. Until the final judgement distils to accepting the meaning of ‘recklessly’ found in the Law Commission’s Report and the Working Paper that preceded it

Question 27

What are the 4 types of aids to interpretation

Answer 27

1. Presumptions of interpretation
2. Rules of language
3. Intrinsic aids
4. Extrinsic aids

Question 28

What are Presumptions of interpretation?

Answer 28

• Statutes do not have retrospective effect, statutes are presumed to be prospective
• A presumption that statutes do not change the common law, unless the express wording suggests so
• Existing rights are not interfered with

Question 29

What are rules of language?

Answer 29

Ejusdem generis rule

• General words which follow specific words must be read in the light of those specific words, provided that the specific words are examples of some particular class (‘genus’)

Has to have the specific word, it’s not in the list then forget it

Question 30

What are intrinsic aids?

internal aids

Answer 30

Found within the act itself - materials within an Act itself which may help make the meaning of a section clearer

Question 31

What are examples of intrinsic aids?

Answer 31

• Short titles (the name of the act and year)
• Long title (includes the purpose)
• Schedules (additions at the end of the main body of legislation)
• The preamble (a fulsome detail)
• Definition sections
• Headings before any section or group of sections
• Marginal notes
• Interpretation section of statute itself and punctuation

Question 32

What are extrinsic aids?

External sources/aids

Answer 32

External materials used to help contextualise an act

Question 33

What are examples of extrinsic aids?

Answer 33

• Dictionaries and textbooks and journals
• Interpretation Act 1978
• Documents produced during the law reform process
• The HRA 1998
• Earlier case law
• Hansard

Question 34

What is the case that allowed/permitted the Hansard for interpretation?

Answer 34

Pepper v Hart (1993)

1. HOL accepted that Hansard could be used in a limited way
2. It permits Hansard to be used where the legislation is ambiguous or obscure or leads to an absurdity
3. And the material relied on comprises one or more statements by a Minister or other promoter of the Bill and such other parliamentary material as is necessary to understand the statements, and the effect and the statements that were relied on have to be clear

Question 35

What is the case that discouraged the references to external materials like Hansard?

Answer 35

Project for the Registration of Children as British Citizens and O v Secretary of State for the Home Department [2022] UKSC

Facts
1. UKSC emphasised a need to look at the statutory language itself and discouraged reliance on parliamentary materials or other extrinsic aids to interpretation

Held

1. Lord Hodge said that the court must start by looking at the language of the statutory provision in question, in the context of the Act as a whole. External aids to interpretation must play only a secondary role and cannot displace meanings that are conveyed by the words of a statute that, after consideration of the context of the Act as a whole, are clear and unambiguous and do not produce absurdity
   2.Lord Hodge found that the requirements of Pepper v Hart had not been met, as there was no ambiguity in the relevant provision of primary legislation.