Law making: statutory interpretations Flashcards
What are the rules of statutory interpretations?
the way in which judges can interpret the law
literal rule, golden rule, mischief rule, purposive approach
why do we need statutory interpretation?
words within the acts can be very vague and may have alternative interpretations.
1. a broad meaning - dangerous dogs act 1991 = type, breed?
r v ireland and burstow - psychiatric harm covers harm?
2. ambiguity - two or more meanings i.e. gay = twining v myers : roller skates amount to a vehicle
3. human error = fisher v bell = offering for sale not offer for sale, had to amend
4. meanings change/ technology = cant anticipate the future r v whitely - magnetic particles
royal college of nursing v dhss - nurses could administer abortions now
5. changes in languages - cheeseman v director- passenger and street have changed
Literal Rule: adv, disadv, case support?
requires courts to interpret statutes in their plain, literal and ordinary sense.
The courts will not examine the intention of Parliament.
+ve: upholds the law made, not based on opinion or prejudice
-ve: ineffective in identifying limitations and complexities in English language. can lead to absurdity. assumes all all acts are perfectly drafted. more than one meaning
northern railyway co v berrimen - very harsh rule
unjust, case- Whiteley v. Chappell (1868) any person entitled to vote, they were dead, absurd outcome
Golden rule:
used where the literal rule would result in an absurdity or an obnoxious result. The court investigates whether the statute wording conveys Parliament’s intention, could not intended an absurdity.
+ve: errors in drafting are amended before awkward precedents are set, thus closing loopholes. Using common sense within law usually provides justice restoring public confidence in the legal system
re sigsworth
-ve: It is problematic though as judges have power to interpret the statute as they wish, changing or adding to its meaning, parliamentary supremacy
case- Adler v George (1964) - vicinity of a prohibited area. he was in the prohibited area, not vicinity.
Mischief rule:
used to interpret gaps (ultra vires) Parliament intended to cover and apply a ruling that remedies the problem in ambiguous statutes
what mischief is the statute trying to remedy to discover the mischief
+ve: it closes loopholes in the law and allows laws to develop
-ve: 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. Judges could make decisions based on their own opinions which could lead to injustice.
case- Smith v Hughes (1960), the defendants charged with soliciting in a public place. The prostitutes were soliciting from windows, technically not a public place
elliot v grey
Purposive approach:
interpreting legislation looks beyond the words of the legislation at the purpose behind it, and the legislation is seen as a skeleton of the law for the judges to flesh out in time. what was parliament meant to achieve
westminster city council v french connection - in a street
+ve: allows judges to look beyond the strict language of the law and achieve a just and reasonable outcome that upholds the legislative intent.
-ve: introduces uncertainty into the law, as no-one can be sure what the judges will consider Parliament’s intention to be. Defendants can’t just look at the relevant legislation and know how judges will interpret it.
case- Pepper v Hart (1993) sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard
what is the problem with the literal vs purposive approach?
have very conflicting views, literal rule single word whereas purposive approach will look at purpose, which approach should the courts use
european - purposive = different languages
Intrinsic aids:
Intrinsic aids are those found within the Act itself.
help make the meaning clearer. The court may consider the long title, the short title and any preamble, marginal notes = made by draftsman - r v national asylum support
ejusdem generis rule - specific words followed by general words then limited i.e. dogs, cats and other animals does not mean wild animals
what is the ejusdem generis rule
things of the same kind
specific words followed by general words then limited i.e. dogs, cats and other animals does not mean wild animals
powell v kempton park racecourse - thing of the same kind
what is the expressio unius exclusio alterius rule?
the express mention of one thing excludes others not mentioned
where there is a list of words, and these words and not followed by general words, then the act only applies to items in the list. for example just dogs and cats suggests no other others
r v inhabitants of sedgley - statute stated lands houses and coal mines so does not include any other mines
tempest v kilner= goods, wages and merchandise did not include stocks and shares
what is the noscitur a sociis rule?
a word is known by the company it keeps = must be taken in the context of the words about it
muir v keay - entertainment
Extrinsic aids:
matters which may help put an Act into context. Sources include previous Acts of Parliament on the same topic, earlier case law, dictionaries of the time, and the historical setting. In addition, Hansard can now be considered. Hansard is the official report of what was said in Parliament when the Act was debated. The use of Hansard was permitted after an absurdity in Pepper v hart
dictionary
hansard
case law
reforms of law bodies - black clawson case
historical setting - spath holme
what is hansard
the official daily reports and debates in parliament proceedings can be used as an external aid in statutory interpretation
pepper v hart - hofl relaxed rule can be used when words on an act are:
ambigious
obscure
lead to an absurdity
What is The impact of European Union law and of the Human Rights Act 1998 on statutory interpretation.
The HRA has had a significant impact on statutory interpretation in the UK, by requiring judges to consider the compatibility of UK law with the ECHR, strengthening the purposive approach to interpretation, and increasing scrutiny of executive action.
The EU only requires interpretation if it is ambiguous. However, in an EU with 27 different legal orders it is important that the principle of supremacy is upheld and that differing interpretations of, for example, a provision of a Directive, does not undermine the effective application of EU law.
MUST PROTECT HUMAN RIGHTS FIRST AND THEN FOLLOW THE OTHER ACT - Mendoza v Ghaidan
Advantages of statutory interpretations:
Using rules of languages and, internal and external material helps interpret the law and also how the system such work. Statutory interpretation is important to the access to justice because it helps the judiciary system implement the law in an efficiency and effective way and helps the Parliament to make the law
Disadvantages of statutory interpretations:
may lead to absurdity, allows judges to have opinion and bias, hard for lawyers to advise and means it is not definite, unjust
