Statutory Interpretation

Question 1

aids to interpretation

Answer 1

the meaning of law in acts of parliament are not always clear and explicit so courts have to decide the exact meaning of words or phrases

there are aids to interpretation which are sources that help them interpret a statute as well as rules of statutory interpretation

aids to interpretation; intrinsic aids, extrinsic aids and language rules

Question 2

intrinsic aids

Answer 2

an internal aid found within the statute itself

used when the meaning of the law in an act is unclear and to assist judges to interpret these acts

include:
• long and short title
• preamble or purpose section
• interpretation section
• schedules 
• marginal notes and headings 
• punctuation

Question 3

intrinsic aids

LONG AND SHORT TITLE

Answer 3

the court can consider the long or short title

titles can be used to give clues as to the meaning of words used in the act and help confirm the purpose

for example, in Royal College of Nursing v DHSS, the SC referred to the long title of Abortion Act 1967 to help confirm its purpose — “to clarify the law relating to termination of pregnancy by registered medical practitioners”

Question 4

intrinsic aids

PREAMBLE OR PURPOSE SECTION

Answer 4

older acts have a detailed preamble section outlining what the statute covers and its purpose

newer acts may have a purpose section at the beginning that states the aims and objectives of the act

for example, Climate Change and Sustainable Energy Act 2006 states that purpose of the act is to “enhance the UK’s contribution to combating climate change”

Question 4

intrinsic aids

INTERPRETATION SECTION

Answer 4

most acts contain an interpretation section with an explanation of key terms

for example, in s10 of the Theft Act 1968, it defines “a weapon of offence” in aggravated burglary as “an article made or adapted for use for causing injury”

Question 5

intrinsic aids

SCHEDULES

Answer 5

usually come at the end of section and include more detailed clarification

further information of how the act is meant to be used

for example, s2(1) of the Hunting Act 2004 states that “hunting is exempt if it is within a class specified in schedule 1” and the exempt classes are set out in detail is schedule 1

Question 6

intrinsic aids

MARGINAL NOTES AND HEADINGS

Answer 6

inserted by the draftsman when the act goes for printing and are extended as a useful reference to aid interpretation

however, where contradiction exists between the wording of the statute and the heading or marginal notes, the wording should be adhered to

Question 7

intrinsic aids

PUNCTUATION

Answer 7

can and should be taken into account by judges in interpreting statutes

Question 8

extrinsic aids

Answer 8

an external aid found outside of the act itself

used when the meaning of the law in an act is unclear and to assist judges to interpret these acts

include:
• dictionary 
• hansard 
• reports
• case law
• human rights act
• interpretation act

Question 9

extrinsic aids

DICTIONARY

Answer 9

used to discover the plain meaning of a word

dictionaries from the time that the act was passed are the most appropriate and helpful sources because meanings of words change over time

for example, in DPP v Cheeseman (1990), D exposed himself in public toilets and the act stated that it was an offence to do this to the annoyance of ‘passengers’. judges used a dictionary of 1990 to define the word ‘passengers’ as “people using the toilet for normal purposes”. therefore, D was not guilty because the police officers didn’t fit that definition as they were not using the toilet for normal purposes

Question 10

extrinsic aids

HANSARD

Answer 10

official report of parliamentary debate about the act

containing records of what the minister creating the act thinks each word means as well as parliaments intentions behind the act

since Pepper v Hart (1993) the courts have been allowed to refer to hansard to find out parliament’s intention

can only be used when wording in an act is ambiguous or obscure

judges must only look at statements made by a minister and statements must be clear in order to be relied upon

Question 11

extrinsic aids

REPORTS

Answer 11

from law reform bodies such as the Law Commission which lead to the passing of an Act (such as the Coroners and Justice Act 2003)

include background information and consultations which were used to suggest improvements, this may reveal more about parliament’s intentions behind the act

Question 12

extrinsic aids

CASE LAW

Answer 12

can use precedent that’s appropriate to the area of law

Question 13

extrinsic aids

HUMAN RIGHTS ACT 1998

Answer 13

judges must interpret words of acts of parliament so their meaning is consistent with the european convention on human rights

Question 14

extrinsic aids

INTERPRETATION ACT 1978

Answer 14

sets out some basic rules about the meanings of common words in acts of parliament

example: he = she, person = corporation

Question 15

3 rules of language

Answer 15

the general rule — “ejusdem generis”

the specific rule — “expressio unius est exclusio alterius”

the context rule — “noscitur a sociis”

Question 16

purpose of rules of language

Answer 16

other words in the act must be considered to see if they affect the word or phrase in question

lawyers have developed rules to do this

Question 17

ejusdem generis / general rule

Answer 17

general words in a list should be “of the same kind” as the specific things listed

where there is a list of words followed by general words, then the general words are limited to the same kind of items as the specific words

for example, if an act refers to “butter, milk, cream and other foods” it would apply to cheese as it is also a dairy product but would not apply to lettuce (although it’s a food, it is not a dairy product)

Question 18

ejusdem generis / general rule

CASE EXAMPLE

Answer 18

Powell v Kempton Park Racecourse (1899)

• the court decided that the general words “other place” in the act referring to a “house, office room or other place for betting” had to refer to indoor places
• since all the words in the list referred to indoor places
• “other place” would have to be a walled off space with a ceiling, like the other places listed

Question 19

expressio unius est exclusio alterius / specific rule

Answer 19

the act only applies to things specifically mentioned — “express mention of one thing excluded others”

where there is a list of words not followed by general words, then the act only applies to items in the list

for example, if an act lists “butter, milk and cream” it would not include cheese because it is not included in the specific list

Question 20

expressio unius est exclusio alterius / specific rule

CASE EXAMPLE

Answer 20

Tempest v Kilner (1846)

• the list “goods, wares and merchandise” was not followed by general words
• so the court held that only contracts for those three things were affected by the statute, the act does not apply to anything else

Question 21

noscitur a sociis / context rule

Answer 21

the meaning of a word can be found by looking at the context of the phrase it’s in or the act as a whole — “a word is known by the company it keeps”

words must be looked at in context and interpreted accordingly, involves looking at other words in the same section or at other sections in the act

for example, if an act refers to “scales, mixing bowls, spoons and whisks” then it would not apply to bathroom scales as the meaning of the word “scales” is informed by the words around it which make it obvious that the act is referred to kitchen scales

Question 22

noscitur a sociis / context rule

CASE EXAMPLE

Answer 22

IRC v Frere (1964)

• the court decided that the phrase “the amount of interest” only related to annual interest
• this was because the other items named in the section related to annual payments, not payments made weekly or monthly

Question 23

x3 evaluation points for aids to statutory interpretation (intrinsic aids)

Answer 23

• respectful of parliament
• quick and easy
• unlikely to be sufficient

Question 24

intrinsic aids evaluation

RESPECTFUL OF PARLIAMENT

Answer 24

using intrinsic aids is more respectful to parliament

this is because it involves looking elsewhere inside the act rather than outside the act

this relates to the principle of parliamentary sovereignty, the courts should respect laws written by parliament rather than developing the law too much on their own

looking outside the act would be undermining of parliament’s authority as the supreme law making body

Question 25

intrinsic aids evaluation

QUICK AND EASY

Answer 25

it is quick and easy to look at things inside the act such as marginal notes

moreover, some internal aids like interpretation sections and schedules are designed to provide definitions and explanations

Question 26

intrinsic aids evaluation

UNLIKELY TO BE SUFFICIENT

Answer 26

internal aids alone are unlikely to be sufficient

especially since many acts have few internal aids

if judges do not refer to anything outside the act then it would make it more difficult to interpret the act fairly and logically

most problems with wording are not likely to be solved by looking elsewhere in the act, particularly if the words are ambiguous

Question 27

x3 evaluation points for aids to statutory interpretation (extrinsic aids)

Answer 27

• hansard can clarify what parliament meant
• undermining parliamentary sovereignty
• more sufficient

Question 28

extrinsic aids evaluation

HANSARD

Answer 28

using hansard can clarify what parliament meant as it is the official report of parliamentary debate about the act

contains records of what the minister creating the act thinks each word means as well as parliaments intentions behind the act

however, hansard may not always be useful in revealing parliament’s intention as sometimes what the minister said may be unclear or ambiguous

Question 29

extrinsic aids evaluation

UNDERMINES PARLIAMENTARY SOVEREIGNTY

Answer 29

using extrinsic aids may be undermining of parliamentary sovereignty

there is a danger of treating materials that are not part of the act as having the same status as the act itself

this relates to the principle of parliamentary sovereignty, the courts should respect laws written by parliament rather than developing the law too much on their own

looking outside the act would be undermining of parliament’s authority as the supreme law making body

Question 30

extrinsic aids evaluation

MORE SUFFICIENT

Answer 30

there are much more extrinsic aids available which means they are likely to be more sufficient

if judges refer to outside sources rather than just the act then it would make it easier to interpret the act fairly and logically

most problems with wording are not likely to be solved by looking elsewhere in the act, particularly if the words are ambiguous so looking outside can be helpful

Question 31

x4 rules of statutory interpretation

Answer 31

literal rule

golden rule

mischief rule

purposive approach

Question 32

what are rules of statutory interpretation?

Answer 32

developed to help the interpretation of statutes in order to decide meaning of words used by parliament

judges are not compelled to follow them

Question 33

the literal rule

Answer 33

giving words their plain, ordinary and literal meaning as it would appear in a dictionary

judges may still apply this rule even if it results in absurd or hard outcomes

cases decided using this rule can lead to amending legislation where a loophole has been exposed

historically, it is the dominant rule

best rule for respecting parliamentary sovereignty as it follows the act precisely, judges will use a dictionary from the year that the act was passed

Question 34

the literal rule: case examples

Answer 34

Whiteley v Chappell (1868)
• D was charged with impersonating “any person entitled to vote” at an election
• D was acquired because he impersonated a dead person who was not entitled to vote

LNER v Berriman (1946)
• Mrs Berriman was unable to obtain compensation when he husband was killed while carrying out maintenance work (oiling points on the railway line)
• he was not engaged in “relaying or repairing” which would have required a lookout to be posted
• she could not claim compensation because the literal meaning of “repair” does not include maintenance

Question 35

the golden rule

Answer 35

an extension and adjustment of the literal rule but slightly different as it goes beyond the literal meaning of words

can not be used independently, may only be applied where an application of the literal rule would lead to an absurdity

presents judges with the challenge of deciding when a result would be absurd or not

the golden rule has 2 branches; narrow and wide

narrow use = where a word has two possible meanings but one would produce an unwanted or absurd outcome, the court chooses the sensible meaning

wide use = where there is only one literal meaning of a word but it must be overridden to avoid an absurd or unwanted outcome

(wide use might rely on extrinsic aids beyond a dictionary)

Question 36

golden rule: case examples

Answer 36

R v Allen (1872) — narrow use
• the offence of bigamy is committed by marrying someone while still legally married to another
• literally, its impossible to commit the offence because you cannot marry if already married
• so the court held that “marry” should be interpreted to mean “to go through a ceremony of marriage” and convicted D

Re Sigsworth (1935) — wife use
• a son murdered his mother and was prevented from inherited her estate under the Administration of Estates Act 1925
• the wording of the act was clear and unambiguous, D was “next of kin” but the court did not want the murderer to benefit from his crime
• this outcome would be absurd

Question 37

mischief rule

Answer 37

has origins in Heydon’s case (1585), four things need to be discussed and considered:

1. what was the common law before the act?
2. what was the mischief (problem) that the common law did not provide a remedy for?
3. what did parliament do to tackle the problem?
4. how can the new law be interpreted?

words are interpreted in such a way as to give effect to the intention of parliament in the light of a pre existing problem/mischief for which the common law did not provide a remedy

Question 38

mischief rule: case example

Answer 38

Smith v Hughes (1960)
• the words “soliciting in the street” in the Street Offences Act 1958 were held to include soliciting from the window of a house
• the court said that the aim of the act was to allow people to walk along the streets without being solicited
• it should be interpreted to cover this situation

Question 39

the purposive approach

Answer 39

seeks to give effect to the general intention of the statute rather than the literal meaning of the words

in Maunsell v Ollins (1975), Lord Simons suggested a two tier test; the judge looks at the purpose of the legislation and then looks at the words, interpreting them according to the purpose

takes a broader approach than the mischief rule, the court is deciding what they believe parliament is trying to achieve with the act

consider the broader context in which the law was created such as the concerns of the government at the time of the act

increases the need for judges to refer to external aids

Question 40

purposive approach: case example

Answer 40

Jones v Tower Boot (1997)
• court of appeal decided that racial harassment by fellow workers was “in the course of employment”, making the employer liable
• said that it was right to give the words a meaning other than their natural one so that the purpose of the legislation could be achieved

Question 41

x4 evaluation points for literal rule

Answer 41

• respects parliamentary sovereignty
• absurd results
• predictability
• ignores limitations of language

Question 42

literal rule evaluation

RESPECTS PARLIAMENTARY SOVEREIGNTY

Answer 42

judges respect that Parliament have the ultimate power by following the act very precisely using the literal rule

they follow the exact words used rather than attempting to seek the intention of parliament and therefore they are not undermining it

judges are unelected and it would not be right for them to change what elected politicians have written

for example, Viscount Simonds in Magor and St Mellons v Newport Corp argued that it was not open for judges to fill in gaps in the act

Question 43

literal rule evaluation

ABSURD RESULTS

Answer 43

following the words so precisely can lead to unfair and absurd results as judges are not looking at the wider context, simply the exact wording

for example, in the case of LNER v Berriman, the outcome was very harsh. a woman was denied compensation after her husband died because he was maintaining the train tracks and not “repairing or relaying” as stated in the act

seems absurd since the purpose of the act was to protect railway workers

Question 44

literal rule evaluation

PREDICTABILITY

Answer 44

provides predictability due to its precise following of the Act which is thorough and consistent, therefore providing certainty in the law

allows lawyers to confidently advise clients on the law and likely outcomes of their case, this means both the client and the lawyer can prepare effectively

Question 45

literal rule evaluation

IGNORES LIMITATIONS OF LANGUAGE

Answer 45

the rule over emphasises the literal meaning of a word without giving full consideration to its meaning in wider context and what applying that meaning could result in

in Whiteley v Chappell, the defendant was acquitted of using a dead person’s name to vote because technically according to the literal meaning, a dead person is not ‘entitled to vote’. this is an absurd result

Question 46

x4 golden rule evaluation points

Answer 46

• respects parliamentary sovereignty
• avoids absurdities
• gives judges too much power
• unpredictable

Question 47

golden rule evaluation

RESPECTS PARLIAMENTARY SOVEREIGNTY

Answer 47

the golden rule is an extension of the literal rule

means that judges respect that parliament have the ultimate power by following the act very precisely as they do in the literal rule

they follow the exact words used rather than attempting to seek the intention of parliament and therefore they are not undermining it

judges are unelected and it would not be right for them to change what elected politicians have written

Question 48

golden rule evaluation

AVOIDS ABSURDITIES

Answer 48

the golden rule is an escape route that avoids absurdities created by the literal rule

sometimes applying the meaning of a word can lead to unjust and blatantly harsh results as in Berriman

whereas the golden rule allows judges to choose the most sensible meaning when there is more than one meaning to words in the act

in Allen, the courts were able to convict D of bigamy by adopting a different meaning for the phrase “to marry” — without this approach, it would’ve been possible for someone to have more than one spouse and commit bigamy

Question 49

golden rule evaluation

GIVES JUDGES TOO MUCH POWER

Answer 49

arguably the rule gives judges too much discretion and power

judges can ignore one meaning of a word and choose the other one which can determine the outcome of the case

this leads to accusations of the judiciary making laws which is overstepping their role

for example, in Sigsworth, the words of the statute were clear and unambiguous yet judges chose to ignore them

Question 50

golden rule evaluation

UNPREDICTABLE

Answer 50

there is no clear guidance on how or when to use the golden rule

judges should use the golden rule if the literal rule would produce an absurd outcome but the definition of “absurd” is subjective

one judge could view an outcome as totally absurd while the other may not think like this, the outcome of a case is therefore dependent on the view of the judge deciding it

makes it hard for lawyers to advise their clients

it has been described as “an unpredictable safety valve”

Question 51

x4 mischief rule evaluation points

Answer 51

• avoids absurdities
• flexible
• uncertainty
• promotes purpose of law

Question 52

mischief rule evaluation

AVOIDS ABSURDITIES

Answer 52

avoids the absurd and unjust outcomes of the literal rule

eg LNER v Berriman

the Law Commission recommended that the mischief rule should be the only rule used in statutory interpretation

Blackstone supported the mischief rule and said it is the “fairest and most rational method” of statutory interpretation

Question 53

mischief rule evaluation

FLEXIBLE

Answer 53

allows the law to adapt to hanging social and technological conditions

can help keep the law up to date

eg RCN v DHSS

Question 54

mischief rule evaluation

UNCERTAINTY

Answer 54

impossible to know when judge will use this rule

judges may reach different conclusions and bring their own views which makes it difficult for lawyers to advise their clients accurately

Question 55

mischief rule evaluation

PROMOTES PURPOSE OF LAW

Answer 55

allows judges to put into effect the remedy that parliament chose which gives expression to parliament’s true intention

for example, Blackstone says “the fairest and most rational method to interpret the will of the legislator is by exploring his intention at the time the law was made”

Question 56

x4 purposive approach evaluation points

Answer 56

• leads to justice in individual cases
• allows judges too much power
• difficult to identify parliament’s intention
• avoids absurdities

Question 57

purposive approach evaluation

LEADS TO JUSTICE IN INDIVIDUAL CASES

Answer 57

a board approach that allows the law to cover more situations than applying the words literally

helps gives effect to the actual intention of parliament

eg Jones v Tower Boot

Question 58

purposive approach evaluation

ALLOWS JUDGES TOO MUCH POWER

Answer 58

trying to find the purpose of the act allows the judges too much power and can lead to judicial law making

allows non elected judges too much discretion in how they choose to interpret the law

this is because they may be ignoring the clear words of parliament which goes against the doctrines of parliamentary sovereignty and separation of powers

Question 59

purposive approach evaluation

HARD TO IDENTIFY PARLIAMENT’S INTENTION

Answer 59

trying to find the intention of parliament relies on extrinsic aids, in particular, hansard

hansard is the official parliamentary debate on the act and the case of Pepper v Hart allows the courts to use it if the phrase being interpreted was expressly discussed in parliament

however, it may not always be useful in revealing parliament’s intention as sometimes what the minister said may be unclear or ambiguous

this can cause delays and prolong the case which only adds to the costs

Question 60

purposive approach evaluation

AVOIDS ABSURDITIES

Answer 60

avoids the harsh and unjust outcomes that result from following the words of an act so closely using the literal rule

many of the cases leading to unfair outcomes under the literal rule could be avoided if a purposive approach had been taken

eg LNER v Berriman

Question 61

impact of EU law on statutory interpretation

Answer 61

most countries in europe adopt the purposive approach, it is also used by the CJEU in interpreting EU law

our courts need to comply with their duty under the TFEU (Treaty on the Functioning of the European Union) so it has been ruled that here the national law to be interpreted in based on EU law, the courts must interpret it in the light of the wording and purpose of european law

this was established in the case of Marleasing (1992)

results in english courts often using the purposive approach both for the law passed to conform with EU law and in other domestic cases

Question 62

impact of HRA 1998 on statutory interpretation

Answer 62

significant effect on the interpretation of statutes

judges must, as far as possible, interpret the words of acts of parliament to give them meaning that is consistent with the ECHR (european convention on human rights)

only applies to cases where one of the convention rights is concerned, does not apply where there is no involvement of human rights

judges have a duty to draw parliament’s attention to the need to amend the legislation by making a declaration of incompatibility if the words of an act are not consistent with the ECHR

Question 63

HRA 1998: case example

Answer 63

Mendoza v Ghaidan (2002)
• court of appeal ignored a judgment from the house of lords which had been made prior to the implementation of the HRA 1998

• read the words “as his or her wife or husband” in the Rent Act 1977 to mean “as if they were his or her wife or husband”
• this was in order to interpret the Rent Act in accordance with the ECHR
• in 2004, the house of lords confirmed the court of appeal’s decision in this case