Legislation and statutory interpretation Flashcards
The government plan to create a tunnel through a large hill which will contain a motorway without ruining the surrounding area of natural beauty. There will be a service station at each end of the tunnel for drivers to rest at. The tunnel will cut travel times by an average of two hours when compared with the current A road which goes quite a long way around the area to avoid disrupting it. The relevant government minister proposes the (fictitious) Under Hill Tunnel Bill.
Which is the best way of describing this type of bill?
A-It is a Public Bill. It concerns motorway travel, where people stop to rest and the environment, all of which are matters which concern the public as a whole.
B-It is a Government Bill. It has been proposed by the minister on behalf of the government to fulfil a long-term plan to improve travel without spoiling the environment.
C-It is a Hybrid Government Bill. It will affect the public as a whole and private commercial entities, such as the service station companies, and it has been proposed by the government.
D-It is a Private Members Bill. The government minister who proposed the bill is also a Member of Parliament and is allowed to make the proposition
E-It is a Private Bill. It only really affects the companies who will build the tunnel and the companies which will run the service stations.
Option C is the best answer. A Hybrid Bill is one which concerns both matters of public importance and matters which directly affect private entities such as companies. Hybrid Bills are quite common in this transport sort of situation. It is also a Government Bill because it is proposed on behalf of the government.
Option A is wrong. It is not a Public Bill, it is a Hybrid Bill.
Option B is only partially correct. It has overlooked the hybrid nature of the bill and only focused on who has proposed the bill.
Option D is wrong. A Private Members Bill is proposed by a MP from one of the opposition parties and not to fulfil government plans.
Option E is wrong. It is not a private bill. It is a Hybrid Bill.
An autistic person would like to have specific reasonable adjustments in their workplace. A judge is asked to apply the Equality Act 2010 to answer a question as to when a disability is “substantial”. The judge knows that autism would fulfil the “long-term” element of the disability definition and that this statute is born from European Union and human rights law. The judge focuses on whether these adjustments would be considered reasonable. The judge relies upon the Guidance and Codes of Practice documents alongside the Equality Act 2010 and notices that they mention, “moreresponsible behaviour from companies” as an aim.
Which rules and tools of statutory interpretation is the judge using?
A-The judge is using the literal rule and extrinsic aids to work out the answer to the question. The needs must literally be substantial to be met by reasonable adjustments.
B-The judge is using the golden rule and extrinsic aids to work out the answer to the question. There could be more than one interpretation of this person’s needs.
C-The judge is using the mischief rule and intrinsic aids to work out the answer to the question. The documents are part of the statute and inform the judge as to what to do.
D-The judge is using the mischief rule and extrinsic aids to work out the answer to the question. The documents are outside of the statute but inform the judge as to what to do.
E-The judge is using the purposive approach and extrinsic aids to work out the answer to the question. The law was derived from EU law and concerns human rights as well.
Option E is correct. The Equality Act 2010 contains laws regarding retained EU law and human rights. The appropriate way to interpret it is through the purposive approach which the UK adopted historically from Europe. The focus on what the statute aims to achieve in the future is a big clue towards this. The Guidance and Codes of Practice are extrinsic aids, outside of the statute itself.
Options A, B and D are wrong. There is no evidence that the judge is employing anything but the purposive approach, although the extrinsic aids part of those answers is correct. Any material employed to interpret a statute outside that statute is an extrinsic aid.
Option C is wrong. The mischief rule is very close in nature to the purposive approach but relates to the mischief the statute seeks to fix and not the aim or purpose behind its enactment. Further, the guidance and code documents are not part of the Equality Act and so cannot be intrinsic aids.
The Prime Minister would like to be able to propose a (fictitious) bill which will set the term of his office to 6 years. The current (real) statute makes the dissolution of Parliament a prerogative power and does not fix the term. At section 3 of the (fictitious) bill, the Prime Minister also intends the (fictitious) bill to say that their new statute cannot be repealed without a two thirds majority of votes in the House of Commons.
In accordance with the classic theory of Parliamentary Sovereignty, can the Prime Minister write section 3 into the bill?
A-Yes, because Parliament is sovereign and can make and unmake any law that it likes, so long as it done through the proper legislative process.
B-Yes, because Parliament is sovereign and may enact laws or repeal laws on any subject.
C-Yes, because Parliament is sovereign and no person or body may question the validity of an Act of Parliament.
D-No, because no Parliament may bind its successor, and no Act can be entrenched or given higher status than any other Act.
E-No, because, as the dissolution of Parliament is carried out on behalf of the monarch, the Prime Minister cannot pre-determine the length of their term.
Option D is correct. One of the three classic descriptors of Parliamentary sovereignty states that a Parliament cannot bind its successor. Later Parliaments should be able to pass statutes on this subject by the usual process of legislation, as a matter of constitutional principle.
Options A, B and C are wrong. Whilst they all embody other elements of the classic definition of Parliamentary sovereignty, they are not the most relevant to the question of changing the legislative process, as is the basis of section 3.
Option E is wrong. There have previously been statutes which fixed the term of Parliament. This does not interfere with the royal prerogative as Parliamentary sovereignty allows legislation to override the prerogative powers.
In a trial which takes place in the High Court, the claimant argues that the defendant is in breach of delegated legislation which gives effect to a directive which has been issued by the European Union. When the judge reads the relevant delegated legislation, it does not appear to him that the wording of the delegated legislation gives effect to the directive as intended.
Which of the following best describes how the judge will read the delegated legislation in a way which gives effect to the directive?
A-The judge will use the purposive rule.
B-The judge will use the mischief rule.
C-The judge will use the golden rule.
D-The judge will use the literal rule.
E-The judge will use the ejusdem generis rule.
Option A is correct. The purposive rule requires judges to look at the reasons why a statute (or piece of delegated legislation) was passed and its purpose, even if this means distorting the ordinary meaning of words. This approach is widely used in European law, which is drafted with the expectation that judges will consider the policy behind the words.
Option B is not the best answer. While the purposive approach is very similar to the mischief rule (which requires the interpreter of the statute to ascertain the legislator’s intentions), the purposive approach has now largely overtaken this rule in relevance. It is the purposive approach that is used when construing EU and retained EU law.
Option C is wrong. The golden rule requires words to be given their ordinary meaning as far as possible, but only to the extent that they do not produce an absurd result.
Option D is wrong. The literal rule requires words to be given their plain, ordinary and literal meaning.
Option E is wrong. The ejusdem generis rule says that, if a general word follows two or more specific words, that general word will only apply to items of the same type as the specific words.
A disputed issue in a civil case concerns the interpretation of a particular provision in a recent Act of Parliament. This provision was debated in Parliament when the Act was passed. Comments about the provision made by the government minister responsible for the Act are reported in Hansard (the official record of parliamentary proceedings). At trial, the judge states that he regards the provision as ambiguous in its meaning and proposes to consult Hansard to help him to interpret it.
Which of the following statements best describes whether the judge can consult Hansard for the purpose stated above?
A-Yes, because a judge is always entitled to consult Hansard as an aid to statutory interpretation.
B-Yes, because a judge may consult Hansard where either a statutory provision is ambiguous or there is a statement about it in Hansard by a government minister.
C-Yes, because a judge may consult Hansard where a statutory provision is ambiguous and there is a statement about it in Hansard by a government minister.
D-No, because parliamentary rules prevent a judge from referring to Hansard during court proceedings.
E-No, because when interpreting a statutory provision a judge cannot look beyond the text of the particular Act itself.
Option C is correct. When interpreting statutory provisions, judges are able to use extrinsic aids (i.e. aids outside the particular Act itself), such as the Interpretation Acts, other statutes and dictionaries. Hansard can also be used as an extrinsic aid in certain circumstances: there is no parliamentary rule which prevents its use but the conditions for such use were set out in the case of Pepper v Hart [1993] AC 593, i.e. that a statute (or particular statutory provision) is ambiguous and that there is parliamentary material recorded in Hansard consisting of clear statements by a government minister (or other promoter) of the Bill.
Option A is wrong as it omits the conditions set out in the case of Pepper v Hart regarding the use of Hansard.
Option B is wrong as the conditions set out in Pepper v Hart are cumulative (ie both conditions must be met).
Options D and E are wrong as judges are able to use extrinsic aids when interpreting legislation and there are no parliamentary rules preventing the use of Hansard.
A court is considering whether a man qualified for direct workers’ rights in accordance with the UK implemented Agency Workers Regulations 2010 (SI 2010/93). The regulations were ambiguous in relation to the protection given to him. The court considered the EU Temporary Agency Work Directive 2008/104 in order to help resolve the ambiuguity.
Which of the following rules of interpretation would be most appropriate for the court to use?
A-The extrinsic evidence rule.
B-The mischief rule.
C-The purposive approach.
D-The literal rule.
E-The golden rule.
Whilst the UK was a Member State of the EU, UK courts were required to adopt a purposive approach in construing EU related legislation. The Agency Workers Regulations 2010 implemented the related EU Temporary Agency Work Directive of 2008 to prevent discrimination against temporary agency workers, providing agency workers with particular holiday, pay and working time rights. Although the UK is no longer a member of the EU, judges regularly adopt a purposive approach to interpret the aims of all types of statute to consider the policy behind the words.
A criminal court is hearing the case of a man charged with the statutory offence of obstructing a member of the UK armed forces “in the vicinity of a prohibited place”. The man was arrested having entered without permission the main office at a government military establishment in order to conduct a protest. The man accepts that his conduct was obstructive and that the office was a prohibited place under the statute but argues that he cannot be guilty of the offence because he was arrested in rather than merely in the vicinity of such a place. The court interprets the statutory offence so as to cover the circumstances of the case and convicts the man.
Which of the following correctly describes the method of statutory interpretation used by the court in this case?
A-The court has applied the mischief rule.
B-The court has applied the mischief rule.
C-The court has used an intrinsic aid to interpretation.
D-The court has used an extrinsic aid to interpretation.
E-The court has applied the golden rule.
The correct answer is E. This scenario shows the application by the court of the golden rule to extend the literal wording of the statute to cover the defendant’s conduct. This is so as to avoid an absurd result, i.e. that if the statute were read literally someone who had obstructed a member of the armed forces near a prohibited place would have committed an offence whereas someone who had done so whilst actually in such a place would not. (The facts are closely modelled on the case of Adler v George [1964] 2 QB 7).
Option A is wrong. There is no indication on the facts of court attempting to discern prior to interpreting the statute the mischief which it was intended by Parliament to remedy.
Option B is wrong. For the reasons stated above, the court has not simply applied the literal rule.
Option C is wrong. There is no indication on the facts of the court having used an intrinsic aid (e.g. the short title or long title of the statute or an interpretation section within it) as an aid to interpreting the statute.
Option D is wrong. There is no indication on the facts of the court having used an extrinsic aid (e.g. a dictionary or the writings of an eminent legal scholar) as an aid to interpreting the statute.
The Agricultural Animals Act 2020 (fictitious) states in its long title that it is ‘An Act to regulate the keeping and use of farm animals; and for purposes connected therewith’. Part of its purpose is to put into law a vets’ code of practice (‘the code’) in relation to farm animal welfare.
Which of the following statements about the Act’s impact and application is correct?
A-If the Act is silent on its extent, it applies just to England and Wales.
B-The code would be contained in various sections of the Act.
C-It would not be possible for the Act to come into force on the date of Royal Assent, as that would give pet owners no notice of changes to the law.
D-The code would in all likelihood appear as a subsequent Statutory Instrument.
E-
A property owner is being prosecuted in the magistrates. The court is considering the Electric Fences Act 2018 (fictional), one section of which says: ‘Property boundaries can be electrified but without undue voltage’. There is uncertainty as to whether this means the electrification can give a painful shock to the touch.
The chair of the bench of magistrates stated when explaining their verdict: ‘One comes to the rule a penal statute, where there is an ambiguity, should always be construed in order to arrive at a sensible result without penalizing the citizen’.
Which rule of interpretation has the Court used here?
A-Golden
B-Purposive
C-Mischief
D-Literal
E-The presumption against alteration of the common law.
Option A is correct. This is an example of the narrow use of the Golden rule. The court is choosing what it regards as the correct option between two different possibilities. In this instance, the court is alluding to the idea any statute must be clear as to its impact. (It is thus also incorporating the important presumption any ambiguity in criminal legislation should favour the citizen, but this is a presumption, not a rule of interpretation as such).
Option B is wrong because the purposive rule requires a broad interpretation which goes beyond the specific meaning of an Act, and this has not happened here. Option C is wrong because there is no indication of the issue which the Act is intended to address, ie there is no apparent mischief mentioned here. Option D is wrong because a literal interpretation is not possible where, as is the case here, there is ambiguity. Option E is wrong because there is no common law point at issue here.
A man is being prosecuted in the magistrates. The court is considering the Guard Dogs Act 1975, one section of which was particularly unclear. The following statement was made by the chair of the bench of magistrates when explaining their verdict:
‘One comes to the rule a penal statute, where there is an ambiguity, should always be construed in favour of the citizen who may find himself the subject of the penalty’.
Which rule of interpretation has the Court used here?
A-The mischief rule.
B-The purposive rule.
C-The golden rule.
D-The literal rule.
E-The presumption against alteration of the common law.
Option C is correct. This is an example of the narrow use of the Golden rule. The court is choosing what it regards as the correct option between two different possibilities, in order to avoid an absurd result. In this instance, the court is alluding to the idea any statute must be clear as to its impact. It is thus also incorporating the important presumption any ambiguity in criminal legislation should favour the citizen.
Option A is wrong because there is no indication of the issue which the Act is intended to address, ie there is no apparent mischief mentioned here. Option B is wrong because the purposive rule requires a broad interpretation which goes beyond the specific meaning of an Act, and this has not happened here. Option D is wrong because a literal interpretation is not possible where, as is the case here, there is ambiguity. Option E is wrong because there is no common law point at issue here.
Literal Rule
The literal rule is a rule of statutory interpretation and is where the courts simply look at the words of the statute and apply them as they are written giving them their ordinary and natural meaning.
Golden Rule
The golden rule is a rule of statutory interpretation and allows the courts to assume that Parliament intended that its legislative provision have a wider definition than its literal meaning, and so the grammatical and ordinary sense of a word can be modified to avoid the inconsistency or absurdity created by an application of the literal rule, but no farther.
aka: applied when there is no ambiguity in the language of the statute, but the literal interpretation would lead to an absurd outcome.
Mischief Rule
Allows courts to deal with unforeseen loopholes or ambiguity within the legislation, which may prevent parliament’s original intention being honoured
aka: interpret a statute in a way that is consistent with the legislature’s intent
Purposive rule
Requires a court to look at the purpose of the statute, and Parliament’s (or a legislature’s) intention when they created the statute, as well as the words written in the statute itself.
aka: requires judges to interpret a statute in a way that gives effect to the legislature’s intended purpose or objective.
Intrinsic (internal) and extrinsic (external) aids
Intrinsic (internal) = tools or materials found within the statute itself
- Preamble
- Long and short titles
- Headings
- Schedules
- Marginal notes
- Interpretation sections
Extrinsic (external) aids = tools or materials found outside the statute itself
-Previous Acts on the same topic
-Earlier case law
-The historical setting
-Dictionaries of the time
-Hansard: Hansard is the official record of debates in Parliament.
-Reports of law reform bodies
-International treaties
