Chpt 5 : Law making - statutory interpretation Flashcards
Why do the courts need statutory interpretation?
- so broad terms are specified and not disputed over
- to clear up ambiguity
- amend drafting errors
- adjust to new developments
- adjust to changes in the use of language
what are the four approaches to statutory interpretation?
- literal rule
- golden rule
- mischief rule
- purposive rule
why is the rule chosen by the judge important?
the rule chosen by the judge determines the interpretation of the law setting future (binding) precedent for cases
what is the literal rule?
courts give words their plain, literal meaning, even if the result isn’t sensible
(Lord Esher). used as the starting point for any legislation.
used in Whiteley v Chappell (absurd outcome)
What is the golden rule?
- modification of literal rule
- uses literal meaning but can adjust to avoid absurd outcome
- Narrow use (Lord Reid): court can decide between possible meanings of words
Adler v George - wider use : can modify words in statute to avoid situations Re Sigsworth
What is the mischief rule?
- comes form Heydon’s case
- allows more discretion
- four points the court should consider:
- what was the common law before the act?
- what was the defect for which the common law did not provide?
- what was the remedy to cure the disease of the commonwealth?
- the true reason for the remedy
what is a case using the mischief rule?
Smith v Hughes
What is the purpose of the mischief rule?
to see what the law was before to discover the gap the law intended to cover so they can interpret the act in a way that the gap is covered .
what is the purposive approach?
judges are trying to find out what parliament meant to achieve with the law and using it in that way
what is a case using the purposive approach?
- R v registrar-general (1990)
How are judges helped with statutory interpretation?
- internal/intrinsic aids
- external/extrinsic aids
what are internal aids?
- considering the long title, short title and preamble (parliament purpose) of the law
- some acts have an interpretation section , headings, marginal notes or sections
what are external aids?
sources outside of parliament e.g.:
- previous acts of parliament on the same topic
- historical setting
- earlier case law
- dictionaries of the time
what are the three main external aids used now?
- Hansard: official reports of parliament (pepper v hart)
- reports of law reform bodies e.g. law commission
- international conventions, regulations or directives
which approach of statutory interpretation is preferred by European countries
purposive approach (more likely to be applied to English law)
what is the effect of the Human Rights act 1998?
- legislation must be read and compatible with the rights in the European Convention on Human rights
e.g. Mendoza v Ghaidan
Advantages of the literal rule
- follows wording of parliament
- prevents unelected judge making law
- makes law more certain
- easier to predict interpretation
disadvantages of literal rule
- not all acts are drafted perfectly
- words have more than one meaning
- can lead to unfair or unjust decisions
advantages of the golden rule
- respects the words of parliament
- allows the judge to choose the most sensible meaning
- avoids the worst problems of the literal rule
disadvantages of the golden rule
- can only be used in limited situations
- not possible to predict
- is a feeble parachute (zander)
advantages of the mischief rule
- promotes the purpose of the law
- fills in the gaps in the law
- produces a just result
disadvantages of the mischief rule
- risk of judicial law making
- not a s wide as the purposive approach
- limited to looking back at old law
- can make the law uncertain
advantages of the purposive approach
- leads to justice in individual cases
- allows for new developments in technology
- avoids absurd decisions
disadvantages of the purposive approach
- difficult to find parliament’s intention
- allows judges to make law
- leads to uncertainty
