Statutory Interpretation Flashcards
When parliament passes an Act..
The meaning of the law should be clear and explicit for the courts to apply
In practice, many cases come before the court because there is a conflict over the meaning of the Act
Statutory interpretation
When judges give a meaning to the words of an Act of Parliament when delivering their judgment in court
Judges must find and declare the law an apply the statute as written by Parliament to a case
Judges must determine the ‘correct’ meaning and application of statutory provisions, using certain approaches and rules to interpret the wording in question
Reasons why the meaning of an Act may be unclear
-Ambiguity
-Broad Terms
-Drafting Errors
-New Developments
-Changes in Language
The Rules
The Literal Rule
The Golden Rule
The Mischief Rule
The Purposive Approach
The Literal Rule
The judge reads the statute as a whole, putting the words into context, the words are given their plain, ordinary grammatical meaning regardless of the
outcome.
Lord Esher in (R v Judge of the City of London Court) if the words of the Act are
clear then you must follow them even if they lead to a manifest absurdity
The Literal Rule cases
(Whitely v Chappell) : D charged under the Act when it made it
an offence to impersonate someone
‘entitled to vote’. D impersonated a dead
man and argued that the dead man was
not ‘entitled to vote’.
Held: D was not guilty as the literal meaning of the words were applied
(Fisher v Bell)
Shopkeeper displayed a flick knife
displayed in his shop with a price tag on
it. The Restrictions of Offensive Weapons
Act 1969 made it an offence to ‘offer’
such flick knives for safe. Under contract
law, goods displayed in shops are not
‘offers’ but ’invitations to treat’.
Held: D was not guilty as literal rule applied to the offence and shop keeper has not committed an offence
Advantages of the Literal Rule
• Follows words used by Parliament: judges
should apply law exactly as it is written
• Makes the law more certain: law interpreted as
intended by Parliament and easier to follow
• Focus the mind of Parliament: forcing them to
be clear when considering wording of an Act
• Respects Parliament Sovereignty: precise words
of Act
• Respects separation of powers: judges have
minimal/ no legislative function
Disadvantages of the Literal Rule
• Rule assumes every Act is perfectly worded:
Dangerous Dogs Act 1991 Parliament used
‘type’ of dog instead of breed.
• When law is drafted not always possible to
cover every situation Parliament intended
(Whitely v Chappell)
• Words may have more than one meaning: Act
unclear
• Use of real can demand unrealistic perfection of wording by draftsmen: foresee every outcome
The Golden Rule
Looks at the literal meaning of the words, but the judge is then allowed to
avoid an interpretation that would lead to an absurd result.
This rule is known as the safety valve and is a modification of the literal
rule.
A judge can choose the best interpretation and two approaches can be used:
- Narrow approach: Court chooses a possible meaning of the words but if there is
only one meaning then that must be given (R v Allen) - Broad approach: if a clear meaning of the words would lead to a repugnant
result, the judge will modify the meaning of the words (Sigsworth)
The Golden Rule Cases
(R v Allen) : D attempted to marry the niece of his first
wife whilst he was still married. Not a
valid marriage due to close relationship of
the 2 women, he was charged under s57
OAPA 1861 offence to get married before
the previous marriage ended. D argued
that he could not be charged as his 2nd
marriage was ‘void’.
Held: used narrow approach and decided
‘shall marry’ to be interpreted as going through a ceremony and D was guilty
(Sigsworth) : A son had murdered his mother who had made a will which meant murderer son would have inherited her estate. There was no ambiguity in the Act but the courts could not let a murderer benefit from a crime, so the broad approach was used.
Held: Court wrote into the Act that D was not entitled to inherit where they had killed the deceased.
Advantages of The Golden Rule
• Rule respects exact words of Parliament, except in limited situations. Narrow approach allows judge to choose the most sensible meaning (R v Allen)
• In cases where literal rule would provide
repugnant situations (Sigsworth)
Disadvantages of The Golden Rule
• Limited in its use— only used on rare occasions, and it is not always possible to predict when courts will use golden rule over the literal rule
• Michael Zander described it is a ‘feeble
parachute’ an escape route but it cannot do very much
The Mischief Rule
The judge looks at the gap in the law before the Act was passed and interprets the words to cover the gap and deal with the mischief.
The rule comes from (Heydon’s case), 4 points the courts must consider:
- What was the common law before the making of the Act?
- What was the mischief and defect for which the common law did not provide?
- What was the remedy Parliament gave?
- The true reason for that remedy
The Mischief Rule Cases
(Smith v Hughes) : The defendants were prostitutes who had been charged under the Street Offences Act 1959 which
made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public.
Held: The court applied the mischief rule holding that the activities of the D’s were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place.
(Royal College of Nursing v DHSS) : The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The OAPA Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses.
Held : It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available, the actions of the nurses were therefore outside the mischief
Advantages of the Mischief Rule
• Promotes the purpose of the law: allows judges to look at the gap in the law and produce a ‘just’ result
• Law Commission prefers this rule: recommended that it should be the only rule used in statutory interpretation.
Disadvantages of the Mischief Rule
• Make lead to uncertainty: difficult to interpret
• Risk of judicial law making when this rule is used
• Split decision in (Royal College of Nursing v DHSS) : shows even senior judges do not always agree with this rule
• MR not as wide as the Purposive approach: limited to looking back at gap in the old law (and not general consideration of the law)
The Purposive Approach
An extension of the mischief rule. The court is not just looking to see what the gap was in the old law; it is making a decision as to what they felt Parliament meant to achieve.
This approach allows judges to look at the aims of the Act in the current social context and thus enables them to develop the law to meet parliament’s intentions as perceived today
The Purposive Approach Cases
(R v Registrar General ex parte Smith) : Under the Adoption Act 1976, an adopted person over 18 could apply for a copy of his birth certificate. Smith applied in the correct manner. The problem was that he was convicted of two murders and detained at Broadmoor suffering from a psychotic illness. It was suggested he wanted to find out who his real mother was in order to kill her.
Held: HOL used purposive approach information not given as Parliament could not have intended to promote a serious crime.
(Jones v Tower Boot Co) : A young black worker was physically and verbally abused at work by fellow workers. He sued employers, argued that they were responsible for their actions. Employer argued the abuse was not part of the job and outside ‘course of employment’.
Held: COA ruled using purposive approach, Parliament’s intent to eliminate workplace discrimination. Employers were held liable.
Advantages of the Purposive Approach
• Judges can take into account new technology after passing of Act (RCN v DHSS)
• Judges can fill in any gaps in the law left by Parliament/ dealing with new situations.
• As seen in case law, justice has been achieved. ‘Just decisions’ (Jones v Tower Boot). Here employers were held liable as they should have kept greater control of their workers.
Disadvantages of the Purposive Approach
• Undemocratic: judges interpreting laws in a way they consider Parliament meant with no accountability in their decisions made in court.
• Time consuming: finding what Parliament meant
• Litigation expensive and uncertain: legal advice difficult as lawyers cannot know until final judgement whether judges use this approach
Aids to Interpretation
When the courts are deciding what an Act of Parliament means, they may look for help with either intrinsic or extrinsic aids.
Intrinsic Aid = Within the Act itself
Extrinsic Aid = Outside of the Act
Intrinsic Aids
Judges can use certain items within the statute to help make the meaning of some of the words clearer
Long title & Short title : Judges will usually consider the long title to help them understand the short title e.g. The Abortion Act
Preamble : Sets out Parliament’s purpose in enacting statute Brief preamble e.g., Theft Act 1968 act to modernise law on theft
Long title : Explain briefly Parliament’s intentions
Headings : Before a group of sections
Schedules : Attached to Act
Marginal Notes : Explaining different sections, helpful comments put in by printer
Interpretative Section : Statement of principles, encourage/ help use of purposive approach
Extrinsic Aids
These are items ‘outside’ an Act which may help a judge to find the meanings of words in the Act
Pre legislative documents : Green Paper, White Paper, Law Commission reports, reports of Law Reform Bodies
Previous Acts : On Same topics
Dictionaries : At the time the Act was passed
Academic Books : Topics
Other Extrinsic Aids
Hansard : Official report of what was said in Parliament when the Act was debated Only considered where words of the Act are ambiguous. (Pepper v Hart) : HOL relaxed previous rule and stated that Hansard could be consulted
Reports of Law Commission/ Reform Bodies : (Black Clawson case) Accepted that such reports should be looked at to discover the mischief in the gap/ gap in the law that the legislation based on the report was designed to deal with
International Treaties : (Fothergill v Monarch Airlines) HOL decided that international treaties can be considered to find the true meaning where the original meaning may have been lost ,UK Judiciary should be allowed this for consistent international interpretation
The Interpretation Act 1978 : The Act provides a definition of certain words that are frequently used in legislation: Month = calendar month
Impact of The Human Rights 1998
S3 Human Rights Act 1998: legislation where possible must be read and given effect which is compatible with the European Convention on Human Rights (ECHR).
Only applies when Human rights is an issue
(Godin- Mendooza v Ghaidan) : Dispute over same sex couple living together had the same rights as unmarried couple under The Rent Act 1977. The act stated ’his or her husband’ was interpreted to mean ‘as if they were his or her wife or husband’. A Previous HOL decision this did not include same sex couples.
Held : in order to be compliant with ECHR allowed same sex couples to have the same rights as unmarried heterosexual couples
