Lecture 4: Interpreting Statutes Flashcards
Statutory Interpretation:
- 80 statutes a year – Primary Legislation
- 3000 statutory instruments – secondary legislation
- Statute law no most prevalent
- Statutes drafted – start with government who write the legislation – as made by humans there can be conflicts and confusion over the words and meanings of the statutes
- Statutes are authoritative
- Up to the courts to interpret and apply the law
- Discern the intention of parliament
- Courts trying to guess what Parliament would have meant had it directed its mind to the circumstances in question
Judiciary:
Power to interpret and apply legislation according to Parliamentary Sovereignty, cannot strike down
Parliament:
Power of Parliamentary Sovereignty to make and unmake any law
Executive:
Power to initiate and propose (Government) manifesto and non-manifesto law and policy – cannot question an Act of Parliament or strike it down as Primary legislation
Interpretation:
- Ordinary meaning of a word as a matter of fact
* Legal meaning as a matter of law
The meaning of the law in a statute should be clear, but there is a need for statutory interpretation due to:
Ambiguity
Drafting error
Inadequate expression
New Developments
Changes in the meaning of words
Words implied but not used
Situations not covered by legislation
Rules of interpretation:
Interpretation Act 1978
Since 1999 – Explanatory Notes
The ‘Literal’ rule:
Literally interpreting the wording of a statute as its literal meaning
Not taking context into consideration
If the words in the statute are clear must be applied as they represent the intention of Parliament as expressed in the words used
Positivism:
Idea that no matter what Parliament put through law it cannot be questioned
Law is the law therefore it must be followed
Issue may be that the law isn’t right – yet judiciary have little means to overturn it
Natural Law:
Idea that the law must support some notion of morality or justice
Politics of Judiciary:
Questionable that judiciary’s understanding of the world is representative of the cases
The ‘Golden’ rule:
Literal wording should be constructed unless to produce an absurdity, and contrary to the intention of Parliament
Assumed that Parliament not normally intend to create absurdity
Remedial action if necessary
Narrow golden rule
Wide golden rule
‘Narrow’ understanding of Absurdity:
Specifically where there has been an error and it just can’t be correct as its contradictory within the statute
Affront to Public Policy (Wide):
Read cases widely to avoid absurdity
The ‘Mischief’ Rule:
Function of judge is to supress mischief and to advance the remedy
