RC3: Judicial Interpretation and Legal Reasoning

Question 1

Key Terms for Legilsation

Answer 1

Green Paper
White Paper
Private Bills
Public Bills
Hybrid Bills
Private Members Bill
Afirmative Procedure
Negative Procedure
Explanatory Notes
Comencement Order
Act of Parliament

Question 2

What form does legislation take ?

Answer 2

-Primary legislation – Act of parliament
-Secondary legislation – Delegated legislation taking the form of an SI
-Delegated legislation suggests how relevant ministers will have the power to make statutory instruments

Question 3

How is primary legislation made in the UK ?

Answer 3

It’s passed into the Houses of Parliament.
It starts as a bill in the HOC and then goes through many readings.
It is then passed onto the HOL where it will also go through all the readings.
The king will give the royal assent.
Once it has gone through this lengthy process, it becomes an act of parliament.
Secondary legislation takes the form of statutory instruments with powers delegated by parliament to the executive. It may be challenged in courts under ultra vires.

Question 4

The passage of a bill thru parliament

Answer 4

-Bill – starts in either HOC/HoL
-Ping-pong stage
-Royal assent
-Act of parliament

Question 5

What is the Ratio Decendi ?

Answer 5

-This is the binding element of this case
-The reason for the decision
-Not as straightforward to identify
-Different judges may give different for reaching the same decision

Question 6

How do the courts apply legislation ?

Answer 6

-‘It’s the constitutional role of the judiciary in common-law jurisdictions to apply the law’
-Discern parliaments intention- but what if the circumstances before the court couldn’t have been foreseen or contemplated by Parliament?
-What if the wording is unclear or ambiguous
-What approaches will the court take to decide upon the meaning of the legislation and how will it apply in relation to the situation before it?

Question 7

What is statutory interpretation ?

Answer 7

-A necessary aspect of communication
-It happens whenever anyone tries to understand language used by another person
-A legal document is intended to cope with the future and not only speak to the present. It often reflects attempted solutions to problems affecting different and conflicting interests.

Question 8

What are the four rules of statutory interpretation ?

Answer 8

Literal Rule- Rule of Construction
Golden Rule- Derived from the verb ‘to construe’ meaning ‘to interpret’
Mischief Rule- Not strict rules, sometimes referred to as ‘canons of interpretation’
Purposive Rule- categories overlap, not rigid

Question 9

What is the literal rule ?

Answer 9

‘An approach to statutory interpretation which attributes to the ordinary dictionary meaning to a word’

Question 10

Key cases for the literal rule

Answer 10

Fisher v Bell
London and North Eastern Railway Company (Apellant) v Berriman (respondent) (1946)

Question 11

Which section and Act applies to second case under the literal rule ?

Answer 11

-S1(1), Railway Employment (Prevention of Accidents) Act 1900
-Schedule, Railway Employment (Prevention of Accidents) Act 1900
-Pursuant to powers in Section 1(1), the Prevention of Accidents Rules 1902 were made
Prevention of Accidents Rules 1902, rule 9:
-With the object of protecting men working singly or in gangs on or near lines of railway in use for traffic for the purpose of relaying or repairing the permanent way of such lines, the railway companies shall, after the coming into operation of these rules, in all cases where any danger is likely to arise, provide persons or apparatus for the purpose of maintaining a good look-out or for giving warning against any train or engine approaching such men so working.

Question 12

What is the Golden Rule ?

Answer 12

An extension of the literal rule. It’s used in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result’.

Question 13

Key Case under the Golden Rule

Answer 13

Maddox v Storer [1963]

Question 14

What does s.24 of the Road Traffic Act 1960 suggest ?

Answer 14

“Passenger vehicles constructed solely for the carriage of passengers and their effects, and dual-purpose vehicles: (1) Vehicles having an unladen weight exceeding three tons, or adapted to carry more than seven passengers exclusive of the driver”-30 mph maximum

Question 15

Where was the mischief rule first found

Answer 15

In the Heydon’s Case (1584)

Question 16

What does the mischief rule look at?

Answer 16

-Originally looked at the purpose of a statutory change to the common law

Question 17

What was the held for the case of Smith v Hughes (1960)?

Answer 17

It was held the meaning of the words ‘did solicit in a street’ for the purpose of prostitution contrary to section 1 (1) of the Street Offences Act. “So, under this rule the court should look to see what the law was before the Act was passed to discover what gap or “mischief” the Act was intended to cover. Then the court should interpret the Act in such a way that the gap is covered”.

Question 18

Key case of the mischief rule

Answer 18

Manchester City Council v McCann - S.118(1) County Courts Act 1984

Question 19

What is the purposive rule ?

Answer 19

-This is based on the mischief rule but goes further by looking at what situation parliament sought to address in a wider sense. It comes under the - Human Fertilization and Embryology Act 1990 (HFEA 1990)

Question 20

Key Case for the purposive approach

Answer 20

R (Quintavelle) v Secretary of State for Health [2003]

Question 21

Case history for the case R (Quintavelle) v Secretary of State for Health [2003]

Answer 21

1st instance is where the judge allowed the application. COA heard the Secretary of State’s appeal and the Claimant’s cross appeal. It set aside the judge’s declaration at first instance.

Question 22

What was the conclusion of this case ?

Answer 22

It was concluded that section 3(3)(d) prohibition did not apply to CNR. They allowed the Secretary of State’s appeal and dismissed the claimant’s cross appeal. After this, the HoL’s heard the Claimant’s appeal. They dismissed the claimant’s appeal and affirmed the court of appeal’s decision.

Question 23

The Dicta of what case was applied in the case of R (Quintavelle) v Secretary of State for Health [2003] ?

Answer 23

The ‘Dicta of Lord Wilberforce in Royal College of Nursing of the UK v DHSS [1981] AC 800, 822, HL(E)

Question 24

What was the definition and section under which embryos fell under ?

Answer 24

Section 1(1) which stated ‘Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which is clear and unambiguous and gives rise to no serious controversy, but these are not the provisions which reach the courts, or at any rate the appellate courts’- Lord Bingham

Question 25

What does the purposive approach encourage ?

Answer 25

Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute.

Question 26

What are the two aids to interpretation used in this case ?

Answer 26

Extrinsic Aid
Intrinsic Aid

Question 27

What is an extrinsic aid ?

Answer 27

‘The target of section 3(3)(d) which is made plain by paragraph 12.14 of the Warnock Report, which need not be quoted but which was directed to a particular form of genetic manipulation and a replacement of the nucleus of a fertilised human egg’- Lord Bingham

Question 28

What is an intrinsic aid ?

Answer 28

‘The White Paper referred, at para 36, to “techniques aimed at modifying the genetic constitution of an embryo” and proposed that legislation “should clearly prohibit all such activities, but with a power for Parliament itself, by affirmative resolution, to make exceptions to these prohibitions if new developments made that appropriate”. Section 3(3)(d) was, I infer, enacted to give effect to this recommendation- Lord Bingham

Question 29

What are the Rules of Language?

Answer 29

-Ejusdem Generis- general words preceded by specific words will be construed with reference to the specific words, e.g. Powell v Kempton Park [1897] 2 QB 242 House of Lords, at 250 suggests ‘The word “place” in the enacting portion of the Act must be construed as meaning something ejusdem generis with the things described by the preceding words, “house, office, room”.
-The Betting Act 1853 made it an offence to keep a house, office, room or other place for the purposes of betting. The House of Lords had to decide if the statute applied to Tattersall’s enclosure at Kempton Park Racecourse.
-Reference in the judgment to the Act’s preamble – intrinsic aid
It was held the statute did not apply to the betting area in operation at the Racecourse – reference in the judgment to the mischief that the Act was passed to correct, and this was not it.
-Noscitur a Sociis – words take their meaning from their context, e.g. Foster v Diphwys Casson (1887)
- A statute which stated that explosives taken into a mine must be in a “case or canister”. Here, the defendant used a cloth bag. The courts had to consider whether a cloth bag was within the definition. Under rule, it was held that the bag could not have been within the statutory definition, because parliament’s intention was referring to a case or container of the same strength as a canister.

Question 30

Other Aids to construction

Answer 30

Intrinsic Aids:
- Long Title
- Marginal Notes
Extrinsic Aids:
- Dictionaries
- Explanatory Notes
- Hansard- see Pepper v Hart

Question 31

Presumptions

Answer 31

-Prospective nature and effect of legislation. In a criminal law statute, there is a presumption that an offence requires fault (Men’s Rea - state of mind).

Question 32

Internal/External compatibility with Law

Answer 32

-Human Rights Act under s.3(1) suggests that primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.