Statutory Interpretation

Question 1

what is meant by statutory?

Answer 1

required, permitted or enacted by statute

having been required or expected to be done by being made regularly

law written and passed by a legislature

Question 2

how are statutes different to case law?

Answer 2

in a statute, every word counts as law

under case-law only important precedent is binding

Question 3

how can statutes be found as legitimate?

Answer 3

legislature include a democratically elected body - democratic legitimacy

process is long so ensures that there has been sufficient scrutiny

parliamentary sovereignty means there’s one legitimate source of law

Question 4

in regard to what body of law do the judges have the greatest interpretative power?

Answer 4

HRA - s.3 interpret as far as possible as to be compatible with the ECHR

ECA - gave supremacy to EU law

Question 5

how would Oliver describe Parliament as not (democratically) legitimate?

Answer 5

the HL are ‘not a body of representatives’

Question 6

what are reasons for not giving the courts the final word on laws (the a constitution)?

Answer 6

courts are confined to facts of particular cases/ lawyers purposefully leave details out

courts are unelected, unrepresentative minorities who cannot be removed from power by the electorate

Question 7

who else, in addition to judges, interprets statutes?

Answer 7

public bodies in their actions
ex// policy following

police officers
ex// interpretation to determine how they will act

Question 8

when did legislative interpretation become distinct from law making?

Answer 8

after the Glorious Revolution in 1688 when the parliament and judiciary were split in their roles

Question 9

how can legislation be interpreted? x2

Answer 9

legislative interpretation - what the words intend to mean

parliamentary intention - what parliament intended by enacting the law
more controversial

Question 10

what is an example of extensive judicial interpretation?

Answer 10

Ghaidan v Godin-Mendoza

rent act application to same sex couples

Question 11

how did Lord Reid describe the purpose of judicial interpretation in the Black-Clawson case 1975?

Answer 11

‘we often say we are looking for the intention of parliament, but that is not quite accurate. We are seeking the meaning of words Parliament used’

‘not subjective concept’ of parliamentary intention

Question 12

what is meant by an ‘ordinary’ or ‘plain’ meaning?

Answer 12

considers context for how language is used

not a literal interpretation ex// I don’t drink - doesn’t mean I don’t drink any liquid ever

Question 13

what is the Golden Rule of statutory interpretation?

Answer 13

never interpret as to make the law absurd

Question 14

what is meant by interpretation making the law absurd?

how is this avoided?

Answer 14

conflict with the rule of law
making crime pay

reading in or removing words

Question 15

what 1964 case highlighted an attempt by the courts to avoid legislative absurdity through interpretation?

Answer 15

Adler v George

interpretation of the Official Secrets Act - ‘in the vicinity of’ to mean ‘on the vicinity of’ when applying to someone who was on a military base obstructing duty

Question 16

what 2003 case highlighted an attempt by the courts to avoid legislative absurdity through interpretation?

Answer 16

Quintavalle

interpretation of a new method of creation of human embryos to be subject to the 1990 Act despite it not using fertilised eggs
parliament had an intention to permit creation of human embryos, not to restrict it to only one method

Question 17

what is remedy to interpretation restricted to?

Answer 17

only where parliament’s intention is obvious

cannot simply assume what parliament would have intended

Question 18

what is meant by ambiguity in statutory interpretation?

Answer 18

where multiple meanings can be generated

vagueness is where there is instead not enough detail

Question 19

what the concept of imaginative reconstruction?

who proposed its use?

Answer 19

when interpretation statutes, the courts should imagine what the legislature were intending to do by enacting it

Aristotle

Question 20

what case sent the precedent that parliamentary proceedings (Hansard) could resolve statutory ambiguity?

Answer 20

Pepper v Hart

Question 21

what are the problems with looking at parliamentary proceedings for intention?

Answer 21

costly and timely

doesn’t represent the law, simply what was debated prior

‘men may intend what they will, it is what they enact that will bind us’ - Scalia

may be overemphasised and overrule the intended interpretation within the statute

difficult to argue there is a collective intention

Question 22

what was Lord Millet’s dissent in Ghaidan v Godin-Mendoza?

Answer 22

was not interpretation

instead it was a process of legislating which oversteps the judicial role

Question 23

what is meant by interpretation vs interpolation?

Answer 23

interpreting the statute
vs
implementing meaning and words to statute for remedy

Question 24

where does L Fuller discuss the imaginary case of trapped explorers who resort to cannibalism?

Answer 24

The Case of the Speluncean Explorers 1949

Question 25

how did the imaginary judges in the case of the speluncean explorers consider the interpretation of the statute?

Answer 25

could argue statute doesn’t apply as they were under the ‘laws of nature’ instead of that under the commonwealth

self-defence could only be interpreted by considering intention - not the statute

Question 26

what are the different approaches to the case of the spelucean explorers?

Answer 26

utilitarian - already a lot of money and casualties caused by trying to rescue them as well as the argument that only one would have to die for the preservation for the rest of the explorers’ lives

kantian - wrong in itself to kill, should respect this categorical imperative not to kill, regardless of the circumstances

Question 27

what did the imaginary court find in the spelucean explorers case?

what were the reasons?

Answer 27

conviction for the killing of the explorer

hard to distinguish when commonwealth laws would stop applying
not self-defence as there was contemplation and choice, not necessity
hunger as an excuse could lead to the allowance of other crimes ex// theft
regardless of consent, there is no legal excuse for cold blood killing