Statutory Interpretation Flashcards
What are the linguistic presumptions of the literal rule?
- Expressio unius est exclusio = closed list
- Ejusdem generis = of the same kind
- Noscitur a solcis = word is known by company it keeps
The literal rule means used used in statute are given ordinary, plain, natural meaning
What is the closed list linguistic presumption?
Expresso uius est exclusio
Express mention of one thing excludes its extension to others. Only followed where there is a list of items with no general words that follow
What is the “of the same kind” linguistic presumption?
- Ejusdem generis
Where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as specific words
What does ‘word known by its company it keeps’ mean?
- Noscitur a sociis
Interpret a word by its place in a phrase / sentence. The words derive meaning from the others surrounding them
This rule is only used where the meaning of a word used in statute is ambiguous or unclear
What is the purposive approach?
The most recent rule which reflects how modern judges approach the interpretative task
Influence of:
- ECHR / HRA / European Community
What is the golden rule?
To give the words their plain, ordinary and usual meaning (as per the literal rule) as afar as possible, but if that means the words do not make sense, then take the words in the context of the Act as a whole. Try to give the words the meaning Parliament must have intended them to without changing the words completely
This gives words ordinary signification, unless when applied they produce an inconsistency or absurdity
What is the mischief rule?
It examines the original purpose of particular provision under consideration
Today it is defunct and has been subsumed into the purposive approach
What is the purpose of statutory rules of interpretation and presumptions?
Used by the courts to understand the intention of Parliament. The purpose is to use the rules to correctly enforce what Parliament intended
What is the literal rule and when is it used?
Read the words in their ordinary, usual way
If the words are clear and obvious, Parliament intended them to be used that way
When interpreting an Act, the literal rule is used first
Wen is the golden rule used?
When the literal rule has been used as far as possible, but if it does not make sense, try to understand what Parliament was trying to do in the context of the purpose of the Act as a whole
Without changing the words too much
What does the court ask when using the mischief rule?
What was the mischief Parliament was trying to remedy?
- what was the common law before the Act was made?
- what was the issue the common law did not provide for and the Act is trying to cover?
- What remedy did Parliament intend?
- What was the real reason for the remedy?
What is the main approach used today?
The purposive approach, which interprets an Act to give effect to its general purpose.
When examining the general purpose, the courts can consider the law previously, the social and political context and use external sources
When is the “of the same kind” approach used?
- ejusdem generis rule
When there is a list of generic but non-exhaustive items. Characterised by a list followed by the words “or other things”
Example: it is illegal to sell prawns, molluscs, oysters and other such things.
- what are other such things? Need to see what is in the list. Identify type/category
Category = shellfish. Other types of shellfish would be included
‘or other similar things’… = ejusdem generis rule would apply
When is the closed list used?
Where there is an express list of specific things which excludes other things of the same type = list of specific things and there is NO “other such things”
Example: an Act imposes a tax on possession of “phones, TVs and tablets”. This is closed and the tax does not apply to anything not listed (e.g., laptops)
What external aids can courts use to interpret an Act of Parliament?
- The Interpretation Act 1978 - sets out some general meanings of words used in Acts (e.g., United Kingdom)
- Old statutes or previous legislation
- Dictionaries
- Hansard
What are the rules if the courts want to use Hansard?
- the legislation is ambiguous or obscure, or its literal meaning leads to absurdity;
- the material being relied on consists of statements made by the minister or member introducing/promoting the Bill; and
- the statements being relied on in Hansard are clear
What are the presumptions the courts use when approaching an Act?
- compliance with international law
- against retrospective operation of an Act
- against the Crown being bound
- against criminal liability without mens rea
- against deprivation of private propertyy and interference with private rights
- against alteration to common law
- against exclusion of judicial review (presumed every Act can be challenged by JR)
- against deprivation of liberty
What is the significance of the presumptions when reviewing an Act, in particular when there is a judicial review claim?
The presumptions apply constitutional and rule of law principles. The court will read and interpret the Act in line with these principles and if a public authority acts outside of such principles, their actions would be unlawful
- the courts views it as “Parliament could not have intended” to have breached rule of law principles
- if Parliament does intend this, the courts have stated only really clear, express language should be used to do so
What is the impact of the HRA on interpreting legislation?
- the court must take into account any judgment, decision, declaration or advisory opinion of ECtHR (s2);
- “so far as possible”, primary and subordinate legislation must be read to be compatible with ECHR (s3);
- If this is not possible, the court may make a declaration of incompatibility (s4)
Which is the most powerful impact of HRA on interpretation?
Section 3 - to read Acts to be in line with the Convention as far as possible
Only if it is not possible to read an Act to comply with the Convention or an Act has stated that it is breached the Convention, will the courts make s4 declaration
What is the effect s4 declaration of incompatibility?
It does not render the Act unlawful; it only puts political pressure on government and Parliament to amend or repeal the Act
What are the two important principles of interpretation of legislation made by Senedd Cymru?
- All Senedd legislation must be available and published in Welsh as well as English. It may be that the rules of interpretation are applied to the Welsh version of the Act
- The limits on the powers the Senedd has under Wales Acts (the reserved powers model) should be considered when interpreting Welsh Acts. Assess whether the Senedd has the constitutional power to make laws
What rules apply to statutory interpretation of Welsh legislation?
Other than the two principles, the rules on statutory interpretation, linguistic presumptions and external aids are the same as for UK legislation
What happens if a Welsh Act is outside Senedd’s legislative competence?
The Supreme Court can strike it out as unlawful
What is the purposive approach?
Judges initially look at the literal meaning of words and, if there is a conflict between the literal meaning and the purpose of the Act, construe the words to conform with the purpose
Judges do not automatically use the purposive approach, but in the modern day, they naturally tend to assess overall context in which Act came about
Informed by wider context
What happens at the committee stage of a bill?
MPs appointed to the relevant legislative committee have the change to scrutinise the detail of the bill and propose necessary amendments
What is the process of scrutiny for secondary legislation?
Secondary legislation is not made by Parliament itself, but usually by government departments under powers given to it by Parliament in primary legislation. It is subject to varying degrees of initial political scrutiny but can be judicially reviewed by courts to ensure that it has been created within the powers originally approved by Parliament
When would reference to Hansard be a useful aid to statutory interpretation to assist a judge?
Where a provision is ambiguous and it had been made clear during the passage of the statute through Parliament that the provision in question was never intended to apply to the particular set of circumstances in the case before the court.
Use Hansard to consider the record of proceedings relating to the legislation
When does statute that includes a specific commencement date come into effect?
Comes into effect on the date specified in the commencement provision
When do the provisions in a statute which has some sections with a commencement date ‘yet to be appointed’ come into effect?
Sections with a commencement date that are ‘yet to be appointed’ must be brought into effect through a statutory instrument
When can judges refer to external aids to interpretation?
Judges can only refer to external aids to interpretation where a word or phrase used in the statute is unclear or ambiguous
What are certain presumptions that the court presumes are implied into statute?
Example: criminal legislation
- the legislation deals with criminal offences
- court presumes that any criminal offence requires proof of mens rea unless statute expressly states otherwise
- the court presumes that the statute does not apply retrospectively
