ELS - Law making: statutory interpretation (C5) Flashcards
What are the 5 main reasons a statute may have an unclear meaning?
- A broad term
- Ambiguity
- A drafting error
- New developments
- Changes in the use of language
What does ‘a broad term’ mean in relation to the unclarity of a statute’s meaning and give an example of a case that highlights this
Words may be designed to cover several possibilities; leading to problems with how wide this should go.
Brock v DPP 1993
What does ‘ambiguity’ mean in relation to the unclarity of a statute’s meaning?
Where a word has two or more meanings; it may not be clear which meaning should be used
What does ‘a drafting error’ mean in relation to the unclarity of a statute’s meaning and give an example of a case that highlights this
There may have been an error upon drafting the Bill that Parliament did not notice.
R v Burstow (1997)
What does ‘new developments’ mean in relation to the unclarity of a statute’s meaning and give an example of a case that highlights this
New technology may mean that an old Act of Parliament does not cover present day situations.
Royal College of Nursing v DHSS (1981)
What does ‘changes in the use of language’ mean in relation to the unclarity of a statute’s meaning and give an example of a case that highlights this
The meaning of words can change over the years.
Cheeseman v DPP (1990)
What are the three rules of interpretation?
- The literal rule
- The golden rule
- The mischief rule
What is the literal rule in legal terms?
A rule of statutory interpretation that gives the words their plain ordinary or dictionary meaning
Give an example of a case that demonstrates the use of the literal rule
Whiteley v Chappell (1868)
London & North Eastern Railway Co. v Berriman (1946)
What is the golden rule in legal terms?
A rule of statutory interpretation. It is a modification of the literal rule and avoids an interpretation that is absurd or repugnant
Give an example of a case that demonstrates the use of the golden rule
Adler v George (1964)
Re Sigsworth (1935)
What is the mischief rule
in legal terms?
A rule of statutory interpretation that looks back to the gap in the previous law and interprets the Act so as to cover the gap
Give an example of a case that demonstrates the use of the mischief rule
Smith v Hughes (1960)
Eastbourne Borough Council v Stirling (2000)
Royal College of Nursing v DHSS (1981)
What is the purposive approach in legal terms?
An approach to statutory interpretation in which the courts look to see what is the purpose of the law
Give an example of a case that demonstrates the use of the purposive approach
R v Registrar-General, ex parte Smith (1990)
R (on the application of Quintavalle) v Human Fertilisation and Embryology Authority (2003)
What are the advantages and disadvantages of the literal approach?
Advantages:
Leaves law making to Parliament.
Makes law more certain.
Disadvantages:
Assumes that every Act is perfectly crafted.
Words have more than one meaning.
Can lead to absurd results.
Can lead to unjust decisions.
What are the advantages and disadvantages of the purposive approach?
Advantages:
Leads to justice in individual cases.
Broad approach covering more situations.
Allows for new technology.
Disadvantages:
Leads to judicial law making.
Can make law uncertain.
Difficult to discover the intention of Parliament.
What are internal (intrinsic) aids?
Matters within the statute itself which help make its meaning more clear
Give examples of internal (intrinsic) aids
- Long title
- Short title
- Preamble
- Interpretation section
- Headings before group sections
- Schedules attached to the Act
What are external (extrinsic) aids?
Matters outside the Act such as sources that can help explain the meaning of an Act
Give examples of external (extrinsic) aids
- Previous Acts of Parliament on the same topic
- Historical setting
- Earlier case law
- Dictionaries of the time
- Hansard
- Law reform reports
Give an example of a case provided in this chapter that highlights the effectiveness of the extrinsic aid: using the dictionary of the time
Cheeseman v DPP (1990)
What’s another word for intrinsic?
Internal
What’s another word for extrinsic?
External
What’s another word for internal?
Intrinsic
What’s another word for external?
Extrinsic
What case relates to the first use of Hansard?
Pepper v Hart (1993)
What were the limitations upon the use of Hansard?
Hansard may be considered but ‘only where the words of the Act are ambiguous or obscure or lead to an absurdity.’
What case related to the relaxation on the rule against the use of law reform reports in court?
Black-Clawson (1975)
What are the advantages and disadvantages of the literal rule?
Advantages:
- Follows the wording of Parliament
- Prevents unelected judge making law
- Makes the law more certain
- Easier to predict how the judges will interpret the law
Disadvantages:
- Not all Acts are perfectly drafted
- Words have more than one meaning
- Can lead to unfair or unjust decisions
What are the advantages and disadvantages of the golden rule?
Advantages:
- Respects the words of Parliament
- Allows the judge to choose the most sensible meaning
- Avoids the worst problems of the literal rule
Disadvantages:
- Can only be used in limited situations
- Not possible to predict when the courts will use it
- It is a ‘feeble parachute’ (Zander)
What are the advantages and disadvantages of the mischief rule?
Advantages:
- Promotes the purpose of the law
- Fills in the gap in the law
- Produces a ‘just’ result
Disadvantages:
- Risk of judicial law making
- Not as wide as the purposive approach
- Limited to looking back at the old law
- Can make the law uncertain
