Evaulation Of Statutory Interpretation

Question 1

Advantages of literal rule:

Answer 1

• Respects parliament sovereignty - follows word used by parliament which is democratically elected
• respects separation of powers - recognises parliament is law making body and judges should apply exactly as it is written. Judges unelected
• legal certainty and predictability - makes it easier for lawyers to advice clients to reduce litigation, alt approaches undermine certainty
• precision - encourages accuracy of parliament, more easily understood by public

Question 2

What are disadvantages of literal rule?

Answer 2

Absurd results - following words exactly can lead to unjust results (Berrimen)
Undermines parliaments intention - cheeseman hardly achieves what parliament wanted, judges required to stay consistent with HR which favours purposive
- unrealistic - expects perfection from parilaumentaty draftsmen, can’t foresee every situation
Ignores limitations of language - overemphasis on literal meaning without giving it context, “mechanical and divorces” from realities of language - Michael zander

Question 3

Advantages of golden rule

Answer 3

• Escape route - avoids absurdities of literal rule, narrow use can use more sensible r.g. R v Allen
• upholds parliaments will- assumes parliament never intends to pass absurd law e.g. R V Sigsworth prevents injustice
• respects parliament supremacy - only used in response to failure of literal rule, departure from meaning is limited, does not give judges freedom
• saves Parliament from having to amend law - better that minor changes are made than passing a whole new law

Question 4

Disadvantages of golden rule

Answer 4

• definition of absurd is subjective - means different things to different judges, creates uncertainty
• gives judges too much power - accusations of judicial law making as determined by judge and not parliament e.g. next of kin in Sigsworth was clear
• unpredictable - no guidance on when it will be used so hard for lawyers to advise clients
• limited use - restricting it to absurd situations means it’s only used rarely

Question 5

Advantages of mischief rule

Answer 5

• promotes purpose of law - allows judge to put into effect the remedy parliament chose, saves parliament from legislating afresh e.g. smith v Hughes
• avoids absurd outcomes - Blackstone justified his support by saying “the fairest and most rational method to interpret the will of the legislator is by exploring his attention at the time the law was made.”
• flexibility - allows law to adapt to changing conditions e.g. Royal College of Nursing v DHSS
• emphasis on making gap is filled - provides alternative and is more respectful than purposive

Question 6

Disadvantages if mischief rule

Answer 6

• judicial law making - judge effectively ignoring words of act, undermines soviergnity and seperation of powers e.g. Royal college of nursing v DHSS
  Uncerainty - impossible to know when it will be used, diff judged bring own views, difficult for lawyers to advise e.g: smith v Hughes
  Difficult to understand intention - “mischief” aimed at can be difficult to establish and judge May be hampered by availability of aids e.g. Hansard
  More limited than puprovise - nudge looms backwards to fill in gap in old law Act tried to deal with. Cannot he used with more general consideration of purpose of law

Question 7

Advantage of purposive:

Answer 7

• Leads to justice in individual cases - broad approach will allows law to cover more situations than applying words literally e.g. Jones v Tower Boot)
• flexibility - allows laws to adapt to changing social and technological advancements e.g. Quintavelle which outlawed cloning
• allows discretion - avoids harsh and destructive analysis of language and absurdity of literal approaches
• more appropriate for modern acts - judges can give a more general consideration, not bound to finding a “mischief”

Question 8

Disadvantage of purposive approach:

Answer 8

• judicial law making - trying to find purpose gives judges too much power, May ignore law contradicting soviergnity and sep of powers
  Difficult to identity intention - can only be used if judve can find parliaments intention, relying on extrinsic aids can add to costs e.g. Hansard
• uncertainty - impossible to know when will be used, lawyers cannot advise