Law Making - statutory interpretation (paper 2)

Question 1

What is statutory interpretation?

Answer 1

The meaning of words give an act of parliament when they are delivering their judgement in court

Question 2

Why do statutes need to be interpreted? (4)

Answer 2

Loosely constructed (vague/open) statutes need specific application
Subtleties of language
Social and cultural perspectives could change the meanings of certain things
The passing of time may change the meanings of some words

Question 3

What does the interpretation of statues provide

Answer 3

Judicial creativity - certain interpretation allow certain applications of the law and could establish precedents, it’s almost an avenue to judge made law. Therefore, there are rules to govern interpretation

Question 4

What are the 4 rules to interpretation?

Answer 4

The literal rule
The golden rule
The mischief rule
The purposive approach

Question 5

What is the literal rule?

Answer 5

Courts are to give the words of the Act their plain and ordinary meaning, even if the result is not sensible

Question 6

State a fact about the literal rule

Answer 6

• This has been the main rule of statutory interpretation since 19th century

Question 7

What is a case for the literal rule and explain it

Answer 7

LNER V Berriman - a railway worker was killed whilst doing maintenance work on the tracks (oiling points along the railway line). His widow was denied compensation for her husband’s death because his activity did not fall within a literal interpretation of ‘relaying or repairing’

Question 8

State 3 advantages of the literal rule

Answer 8

It makes the law more certain
Allows for quick and easy decision making
It respects the separation of power doctrine

Question 9

One advantage of the literal rule is that is makes law more certain. Explain why

Answer 9

The law will be interpreted exactly as it is written by parliament. This makes it easier for lawyers and the public to know what the law is and how judges will interpret it

Question 10

One advantage of the literal rule is that it allows for quick and easy decision making. Explain why

Answer 10

All that a court needs to do is look at a dictionary from the year the statute was made, which is what happened in the case of Cheeseman, when the court had to interpret the meaning of passenger. Just looking at a dictionary is much quicker way of doing statutory interpretation than hunting through reports etc. to try and find the meaning of parliaments intention

Question 11

One advantage of the literal rule is that it respects the separation of power doctrine. Explain why

Answer 11

As judges have minimal or no legislative function so it does not allow them to interfere with parliament’s law making

Question 12

State 3 disadvantages of the literal rule

Answer 12

It assumes every act will be perfectly drafted
Following words of an act exactly can lead to unjust or unfair decisions
It ignores the fact that words have more than one meaning

Question 13

One disadvantage of the literal rule is that it assume every act will be perfectly drafted, without any mistakes
Explain why

Answer 13

This is a disadvantage because it means that if an Act is poorly drafted or contains errors, judges will lack the necessary flexibility to arrive at a correct decision.

Furthermore this can lead to absurd outcome such as in Whitely V Chappell

Question 14

One disadvantage of the literal rule is following words of an act exactly can lead to unjust or unfair decisions. Explain why

Answer 14

This is regardless of the consequences. This is problematic because it leads to outcomes such as the one in LNER Berriman in which a workman’s widow was denied compensation for her husband’s death because his activity did not fall within literal interpretation of ‘relaying or repairing’

Question 15

One disadvantage of the literal rule is that it ignores the fact that words can have more than one meaning. Explain why

Answer 15

The act may be unclear as a result. This is a problem because the judges may not be able to identify which ordinary meaning of the word to choose.

In the dangerous dog act 1991, parliament used the word
‘type’ of dog, whereas they should’ve used the word ‘breed’ instead. This creates uncertainty in the law which is contrary to the requirement of the rule of law for ascertainable rules

Question 16

What is the golden rule?

Answer 16

Where judges decide that the literal rule produces absurd results when interpreting statute

Question 17

State and explain the two approaches for the golden rule

Answer 17

Narrow approach - when a word or phrase has more than one meaning, the judge can select the meaning which avoids absurdity

Broad approach - where judges modify the literal meaning of a word to avoid absurdity

Question 18

State and explain the name for the narrow and broad approach

Answer 18

R v Allen - to be married and marry another person formed the offence of bigamy under s57 of OAPA 1861

Re Sigsworth - when court interpretated the law to mean that a son who murdered his mother would not inherit her estate, even though he would’ve inherited it under the literal rule. Which therefore applies to the broad approach as they modified the meaning of ‘hier’ to ensure the son wouldn’t receive any on the inheritance

Question 19

What are the advantages of the golden rule

Answer 19

Escape route
Respects exact words from parliament except in limited situations
Sensible decisions

Question 20

Golden rule - escape route

Answer 20

It provides an ‘escape route’ from absurd outcomes associated with the literal rule

This is an advantage because it avoids outcomes that Parliament would not have intended

Question 21

Golden rule - respects parliaments exact words except in limited situations

Answer 21

This is an advantage because it avoids the judges making law to any great extent, and only if a literal approach would lead to a ‘manifest absurdity’

Furthermore, the narrow view of the golden rule upholds the sovereignty of Parliament, which is appropriate as Parliament is the supreme law making body

Question 22

Golden rule - sensible decisions

Answer 22

The golden rule avoids decisions that would lead to a repugnant situation as the judge can substitute an alternative meaning for words using the wide approach

This is an advantage because it allows for just decisions e.g Re Sigsworth the judge was able to re interpret the administration of estates act to avoid allowing son who had killed his mother to inherit

Furthermore this upholds public confidence in the legal system and judiciary

Question 23

What are the disadvantages of the golden rule

Answer 23

Limited in its use
Uncertainty
Feeble parachute

Question 24

Golden rule - limited in its use

Answer 24

The golden rule is very limited in its use as it is only used when the literal rule leads to absurdities

Therefore it is only used on rare occasions. It is also not always possible to predict when the courts will use the golden rule and this leads to the law being uncertain and unclear for lawyers and the general public

Question 25

Golden rule - uncertainty

Answer 25

The interpretation depends on each judge and what they deem to be an absurd result

Also can make it difficult for lawyers to advise their clients on the potential outcomes of cases

Question 26

Golden rule - feeble parachute

Answer 26

Michael Zander has described the golden rule as a ‘feeble parachute’

This means that the golden rule is an escape route from absurdities and unjust decisions of the literal rule but it is a very limited escape route that cannot do very much

Question 27

What is the mischief rule

Answer 27

Where judges look at the gap in the law before the act was passed and interprets the words to cover the gap and deal with the mischief

Question 28

What rule came from the mischief rule
- what were the four things when interpreting statutory provision

Answer 28

Heydon’s case 1854, where it was established that the courts should consider four things when interpreting a statutory provision
- what was the law before the act was passed
- what was the problem the statute was seeking to remedy
- what was parliament’s solution
- the true reason for parliament’s solution

Question 29

Name and explain a case for the mischief rule

Answer 29

Smith v Hughes

Defendants were prostitutes who had been charged under the street offences act 1959 which made it an offence to solicit in a public place

The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public

The court applied the mischief rule holding that the activities of the defendants were within the mischief the act was aimed at even though under a literal interpretation they would be in a private place

Question 30

What are the advantages of the mischief rule

Answer 30

Promotes the purpose of law
Flexibility
The law commission prefers the mischief rule

Question 31

Mischief rule - promotes the purpose of law

Answer 31

This is an advantages because Parliament’s wishes are more likely to be achieved than if the literal rule was used

RCN v DHSS the court’s interpretation helped to deal with the mischief the abortion act sought to prevent, which was backstreet abortions

Furthermore in respecting parliament’s wishes, the courts are upholding parliamentary sovereignty which states that parliament is the supreme law making body

Question 32

Mischief rule - flexibility

Answer 32

As judges are not confined to the literal meaning of the words in the act

This allows judges to avoid absurd outcomes that parliament would not have wanted

e.g smith v hughes, the fact that a prostitute was not literally on the street did not prevent the court finding her guilty as they could refer to the mischief the act sought to prevent, which was people being bothered about prostitutes

Furthermore, such decisions uphold public confidence in the judiciary and the legal system

Question 33

Mischief rule - the law commission prefers the mischief rule

Answer 33

and as long ago was 1969, it is recommended that it should be the only rule used in statutory interpretation

Question 34

Disadvantages of the mischief rule

Answer 34

There is a risk of judicial law making
Uncertainty
Not as wide as the purposive approach

Question 35

Mischief rule - risk of judicial law making

Answer 35

Unelected judges are filling in the gaps in the law with their own views on how the law should remedy particular situations.

Royal College of Nursing v DHSS shows that judges do not always agree on how to ‘fill the gap’ as the case was decided on a majority of 3 judges with 2 judges dissenting.

Question 36

Mischief rule - uncertainty

Answer 36

Use of the mischief rule could lead to uncertainty in the law. It is impossible to predict when judges will use the rule and what the result of the interpretation will be.

This makes it increasingly difficult for lawyers to advise their clients on what the law might be.

Question 37

Mischief rule - not as wide as the purposive approach

Answer 37

The mischief rule is not as wide as the purposive approach as it is limited to looking back at the gap in the old law.

It cannot be used for a more general consideration of the purpose of the law

Question 38

What is the purposive approach

Answer 38

More modern approach which does not consider any gaps in the law but looks at what Parliament is meant to achieve. It goes beyond the mischief rule.

Question 39

Name and explain three cases of the purposive approach

Answer 39

Newport corporation 1950, Lord Denning advocates for judges using the purposive approach. Also said that the mischief rule was used to fill in the gaps, but the approach can go further than this. It takes the original statute and interprets it to achieve parliament’s intention.

In Pepper v Hart Lord Griffiths said ‘the courts have to adopt a purposive approach which seeks to give effect to the true purpose of legislation’ This shows that the approach is used to interpret domestic law, as well as European law

R v Secretary of State for Health 2003, where the use of embryos was regulated by the Human and Embryology Authority

Question 40

What are the advantages of the purposive approach

Answer 40

Justice
More discretion
Allows law to be adapted to work with advances in technology

Question 41

Purposive approach - justice

Answer 41

Leads to justice in individual cases, as the purpose of the law is taken into account

This is an advantage because the approach allows judges to cover more situations than if the words were taken literally, or the mischief rule was used, as show in Quintavalle

This means that the purposive approach can give effect to the true intentions of Parliament, which respects parliamentary sovereignty. This is appropriate as our elected parliament is the supreme law making body

Question 42

Purposive approach - more discretion

Answer 42

Give judges more discretion when interpreting statues, which allows them to avoid absurd outcomes

This is an advantage because it allows judges to arrive at fairer decisions. e.g the decision in whiteley v chappell could have been decided more appropriately using the purposive approach

This is beneficial as fair outcomes are good because it upholds public confidence in the judiciary and the justice system

Question 43

Purposive approach - allows law to be adapted to work with advances in technology

Answer 43

So that law is keeps up to date

In cases such as Quintavalle the law was able to include new technology whereas if the literal rule had been applied, Parliament would have had to pass a new act in order to deal with the situation

However it can be argued that in taking this approach, judges are making the law, which infringes on parliament’s roles and breaches the separation of powers as judges should only interpret the law

Question 44

What are the disadvantages of the purposive approach

Answer 44

Difficult to find out what parliament’s true intentions were
Difficult to determine the outcome of a case
Judges may refuse to follow the clear words set out by our elected parliament

Question 45

Purposive approach - Difficult to find out what parliament’s true intentions were

Answer 45

Which makes it hard to apply them to the statue

This is a disadvantage because many argue that the only reliable way to find out Parliament’s intentions is to look at the statute, and that Hansard is not always reliable and can be confusing

This means that unelected judges are ‘making’ the law rather than using Parliament’s words, which infringes upon the sovereignty of our elected parliament

Question 46

Purposive approach - it can be difficult to determine the outcome of a case

Answer 46

it depends on what judges think the purpose of the act was

It makes it difficult for lawyers to advise their clients on
potential outcomes and creates uncertainty

This is contrary to the rule of law which requires the law to be ascertainable

Question 47

Purposive approach - Judges may refuse to follow the clear words set out by our elected parliament

Answer 47

This allows unelected judges to make the law

e.g Fitzpatrick v Sterling Housing Association, the court decided that same sex couples had the same entitlement as other couples when it came to housing rights. Some may argue that this is judges making the law, not interpreting it

This is a breach of the separation powers which states that judges should only interpret the law, not make it

Question 48

Explain intrinsic aids to interpretation

Answer 48

Judges can use certain items within the statute to help make the meaning of some words clearer

• A judge can consider the short and long title of an act of parliament, also the preamble if there is any
• Preamble is a text at the start of the act of parliament that explains the purpose of the act. Used to very very long but are often short in modern statues
• Theft Act 1968
• Any headings before a group of sections, any schedules attached to the act

Question 49

Explain extrinsic aids to interpretation

Answer 49

These are items outside an act which may help a judge to find the meaning of words in the act
e.g green and white papers
e.g Hansard, the offical report of what is said in parliament when an act is debated. In the past judges were prohibited from looking at Hansard when interpreting acts of parliament

Pepper v Hart - judges can consult Hansard but only in limited circumstances (ambiguity, obscurity or absurdity)

Interpretation act 1978 set out definition of some commonly use words i.e land, month and includes words referring to one genders e.g masculine also applies to other genders

Question 50

What is the impact of EU law on statutory interpretation

Answer 50

The purposive approach is preferred by most EU countries when interpreting their own legislation

It is also the approach adopted by the European court justice in interpreting the law

UK judges having to use the purposive approach for EU for over 40 years have made them more likely to apply it to UK law

Now the UK has left the EU, this will no longer apply. However judges are likely to continue to use the purposive approach

Question 51

Impact of human rights act on statutory interpretation

Answer 51

Section 3 of HRA 1988 states that as far as it is possible to do so, legislation must be read and given effect in a way that is compatible with the rights in the European convention on human rights

Ghaidan [2002]- Court used HRA to interpret Rent Act 1977 to also include same sex couples