STATUTORY INTERPRETATION Flashcards
1
Q
what is the need for SI?
A
- language in the act can be broad, which often need interpreting for the courts to decide what has been covered by terms (Chan fook and Burstow)
- language can be ambiguous meaning words can have more than one meaning (R v Allen - marry)
- meaning of words can change overtime (R v Cheeseman - passenger)
- sometimes parliamentary draftsman have made errors - courts sometimes have to interpret words to overcome this
2
Q
the literal rule
A
- first rule, plain, ordinary, grammatical meaning even with and unjust result
- Cheeseman - absurd result as act was made to stop these people
- Berriman - unfair result - widow could not claim compensation as he was killed whilst maintaining rather than ‘relaying/repairing tracks’
3
Q
advantages of the literal rule
A
- respects parliamentary sovereignty
- certainty and consistency in the law
- quick, clear, cost efficient SI
- judges do identify problems with statues (Fisher v Bell)
4
Q
disadvantages of the literal rule
A
- often has absurd results (Cheeseman, Whitley v Chappell)
- unfair results (Berriman)
- very inflexible and doesn’t allow judges to use their common sense
- allows people to escape convictions (Cheeseman)
- often unrealistic standards - perfection
5
Q
the golden rule
A
- adaptation of the literal rule, used when the literal has caused an unjust/absurd result
- a narrow and wide approach
- narrow rule - words have more than one meaning and a judge chooses the one that makes the most sense. Lord Reid - “you can choose between those meanings,but beyond this you cannot go” (R v Allen - “marry”)
- wider rule - only one meaning but creates an absurd result (R v Sigsworth - court has to interpret “issue” and whether it would allow her son to inherit under rules of intestacy)
6
Q
advantages of the golden rule
A
- avoids absurdity (Sigsworth)
- allows parliament to follow what was initially intended
- prevents parliament having to pass new legislation - can be seen in Adler v George, golden rule was used to interpret the world “in the vicinity of a prohibited place” to mean “in/on the vicinity of a prohibited place”
7
Q
disadvantages of the golden rule
A
- wider approach can only be used in limited situations (sigsworth)
- no clear guidance on when to use the rule. only used in situations with absurd/repugnant outcomes but not in situations of unfairness (Berriman) - subjective concepts
- undemocratic - allows for judicial law making
- goes against separation of powers
8
Q
the mischief rule
A
- oldest of the rules, created in Heydon’s case 1584
- looks at why the act was passed in the first place
- using the rule, judges should aim to identify the mischief (problem) that the act was designed to remedy (put right)
- courts should then interpret the statue in a way that the mischief (original statue was aiming to rectify) was eliminated and the remedy was achieved
9
Q
4 factors Heydon’s case said judges should consider:
A
- what was the common law before act?
- what mischief did the act hope to remedy?
- what was the remedy parliament was trying to provide?
- what was the reason for the remedy?
10
Q
cases for the mischief rule:
A
the royal college of nurses v DHSS (1981) - abortion act 1967 said abortions can only be given by doctors, but medince had adacanced. for the purpose of the act it was made so nurses can give abortions with pills/injections to stop back street abortions
- Corkery v Carpenter (1951) - was an offence under the licencing act 1872 to be drunk in charge of a carriage on highway - court said ‘carriage’ meant transport and mischief was to keep people off the road
11
Q
advantages of the mischief rule
A
- gives effect to parliaments intentions (royal college of nurses)
- avoids absurdity, injustice and repugnant situations
- repairs bad laws quickly
- allows judges to interpret laws with consideration of social and technological changes
- allows judges to look outside the act using extrinsic aids
12
Q
disadvantages of the mischief rule
A
- finding the intention of parliament can be hard, Hansard may not even help
- undemocratic - gives too much power to unelected judges and goes against the separation of powers
- the rule is over 500 years an outdated, not suitable for the modern world when few acts were passed
- creates uncertainty within the law
13
Q
the purposive approach
A
- goes further than the mischief rule
- interprets the law in a way which achieves parliaments original purpose/intention
- mid 20th century, looks at ‘spirt’ rather than exact word
- EU used approach to interpret EU law and HR legislation
- likes the use of extrinsic aids (hansard, EUCHR, law commission reports)
14
Q
cases for purposive approach:
A
- R v Registrar General ex parte Smith 1990: interpretation of the adoption act 1976, under act people were entitled to ask about birth parents to try track them. smith wanted his original birth certificate but he was in prison for murder with serious mental health problems
- courts uses purposive approach and said parliament never intend to expose birth parents to serious risks
15
Q
advantages of the purposive approach
A
- sensible approach which allows parliament to uphold parliaments intentions
- allows judges to use common sense
- allows for wide use of external aids
- avoids absurd, repugnant and unfair results
16
Q
intrinsic aids to statutory interpretation
A
- internal aids, found within the statue
- long and short title of act (give clues about the statue)
- preamble (introductory paragraph)
- definition paragraphs (eg theft act)
- marginal notes (which explain some things)
17
Q
extrinsic aids to statutory interpretation
A
- dictionaries (literal approach, used at time act was made, plain meaning of words)
- Hansard (written record of what was said in parliamentary debates and through the legislative process - Pepper v Hart)
- law commission (law commission reports have been used since the Black Clawson case to decide the meanings of statues)
- some acts of parliament (interpretation act 1978 can give guidance about what was meant)
- EU directives (direct or instruct member states to put EU rules into national law)
18
Q
effect of EU membership and HR on SI
A
- mid 20th century we stared to adopt eus purposive approach to SI. this is a common sense approach.
- S3 of the HRA says that the UK courts must try to interpret our laws in a way which is compatible with HR (Mendoza 2002)
