Statutory interpretation Flashcards
Statutory interpretation
The words of an Act of Parliament are authoritative. The constitutional role of the judiciary is the application of legislation. Statutory interpretation, which is by no means a precise art, involves the application of certain rules and presumptions. A statute may need interpretation if the Act is badly drafted, or because the subject matter of the act is complex, or when errors are inevitable.The meanings of words also change over time.
The literal rule
This rule gives all the words in a statute their ordinary and natural meaning, on the prin-
ciple that the best way to interpret the will of Parliament is to follow the literal meaningof the words they have used. Under this rule, the literal meaning must be followed, even
if the result is silly;
The literal rule cases
Whitely v Chapell (1868) A statute aimed at preventing electoral malpractice made it
an offence to impersonate ‘any person entitled to vote’ at an election. The accused was
acquitted because he impersonated a dead person and a dead person was clearly not entitled to vote!
London and North Eastern Railway Co v Berriman (1946) A railway worker was
knocked down and killed by a train, and his widow attempted to claim damages. The
relevant statute provided that this was available to employees killed while engaging
in ‘relaying or repairing’ tracks; the dead man had been doing routine maintenance
and oiling, which the court held did not come within the meaning of ‘relaying and
repairing’.
Advantages of the literal rule
It respects parliamentary sovereignty, giving the courts a restricted role and leaving law-
making to those elected for the job.
Disadvantages of the literal rule
Where use of the literal rule does lead to an absurd or obviously unjust conclusion, it can
hardly be said to be enacting the will of Parliament, since Parliament is unlikely to have
intended absurdity and injustice.
The golden rule
This provides that if the literal rule gives an absurd result, which Parliament could not
have intended, then (and only then) the judge can substitute a reasonable meaning in
the light of the statute as a whole.
The golden rule cases
Maddox v Storer (1963) Under the Road Traffic Act 1960, it was an offence to drive at
more than 30 mph in a vehicle ‘adapted to carry more than seven passengers’. The vehicle in the case was a minibus made to carry 11 passengers, rather than altered to do so, and the court held that ‘adapted to’ could be taken to mean ‘suitable for’.
The mischief rule
The mischief rule was laid down in Heydon’s Case in the sixteenth century, and provides
that judges should consider three factors:
● what the law was before the statute was passed;
● what problem, or ‘mischief’, the statute was trying to remedy;
● what remedy Parliament was trying to provide.
The judge should then interpret the statute in such a way as to put a stop to the problem
that Parliament was addressing.
The mischief rule case
Smith v Hughes (1960) The Street Offences Act 1959 made it a criminal offence for a prostitute to solicit potential customers in a street or public place. In this case, the prostitute was not actually in the street, but was sitting in a house, on the first floor, and tappingon the window to attract the attention of the men walking by. The judge decided that the aim of the Act was to enable people to walk along the street without being solicited, and since the soliciting in question was aimed at people in the street, even though the prostitute was not in the street herself, the Act should be interpreted to include this activity.
Elliott v Grey (1960) The Road Traffic Act 1930 provided that it was an offence for an
uninsured car to be ‘used on the road’. The car in this case was on the road, but jacked up,
with its battery removed, but the court held that, as it was nevertheless a hazard of the type
which the statute was designed to prevent, it was covered by the phrase ‘used on the road’.
Advantages of the golden rule
The golden rule can prevent the absurdity and injustice caused by the literal rule, and help
the courts put into practice what Parliament really means.
Disadvantages of the golden rule
The Law Commission noted in 1969 that the ‘rule’ provided no clear meaning of an ‘absurd
result’. As in practice that was judged by reference to whether a particular interpretation
was irreconcilable with the general policy of the legislature, the golden rule turns out to
be a less explicit form of the mischief rule
Advantages of the mischief rule
The mischief rule helps avoid absurdity and injustice, and promotes flexibility. It was
described by the Law Commission in 1969 as a ‘rather more satisfactory approach’ than
the two other established rules.
Disadvantages of the mischief rule
Heydon’s Case was the product of a time when statutes were a minor source of law, compared to the common law. Drafting was by no means as exact a process as it is today, and the supremacy of Parliament was not really established. At that time too, what statutes there were tended to include a lengthy preamble, which more or less spelt out the ‘mischief’ with which the Act was intended to deal. Judges of the time were very well qualified to decide what the previous law was and what problems a statute was intended to remedy, since they had usually drafted statutes on behalf of the king, and Parliament only rubber-stamped them. Such a rule may be less appropriate now that the legislative situation is so different.
The purposive approach
The purposive approach involves seeking an interpretation of the law which gives effect to
its general purpose. It is based upon the mischief rule. It allows the courts to look beyond the
words used in the provision to find an interpretation which furthers its general purpose. In Pepper v Hart (1993) Lord Griffiths:
The days have long passed when the court adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation
and are prepared to look at much extraneous material that bears on the background against
which the legislation was enacted.
The purposive approach cases
R v S of S for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003]
The Pro Life Alliance argued that the Human Fertilization and Embryology Authority did not have authority to license research with regards to cloning. The Human Fertilization and Embryology Act 1990 granted the Authority the right to license research with regards to embryos. An embryo was defined in the Act as ‘a live human embryo where fertilization is complete’. However, embryos created using cloning are not fertilized.
Held:
The House of Lords held that the cloned embryos were covered by the statute taking a purposive approach to statutory interpretation.
