Statutory Interpretation Flashcards
This pack is focused on the Statutory Interpretation in England and Wales, with focus on similarities and differences between both systems. The content is based on the BPP Study Notes provided online.
What is the literal rule?
- A linguistic rule. Taken at face value, no deeper reading.
* This applies when there are few ambiguities. Judges should not invent ambiguities.
What is the golden rule?
• A linguistic rule. It applies not when the literal word is unfair, but when the literal rule leads to absurdity or inconsistency with the statute.
What is the mischief rule?
• A linguistic rule. The main aim of the rule is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. In applying the mischief rule, the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by Parliament in passing the bill.
What is the purposive rule?
• A linguistic rule. Newest rule, late 20th century, from likes of Lord Denning who sought to avoid destructive literalism and European influence.
• Derived from the mischief rule, the purposive rule has three extensions on the original:
◦ Mischief rule only applied where the statute was enacted to rectify a gap in the Common Law. The PR applies where the area of law in question was previously covered by statute.
◦ Mischief could only survey the statute itself to ascertain the purpose of the statute. Under the purposive rule, the court can refer to various external materials.
◦ The court will look at the social and economic context of the statute in order to divine its purpose.
What is Greenberg’s ‘contextual progressive analysis’?
I. First, seek to understand the plain meaning.
II. If in doubt, seek the broad purpose of the legislation.
III. If the new reading advances the purpose identified, and does not conflict with the plain meaning, the court should adopt the reading.
IV. Where it would conflict with the plain meaning, the result would depend on context and the amount of conflict.
V. If the conflict is too great, and the legislation is insufficiently plain, judges should leave to the legislature the task of extending or modifying the legislation.
What are the main linguistic presumptions?
- ejusdem generis
- expressio unius est exclusio alterius
- noscitur a sociis
What does ‘ejusdem generis’ mean?
‘of the same kind’ or genus. When a Statute includes a generic but non-exhaustive list of items. The presumption is that, where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objets as the specific words.
What does ‘expressio unius est exclusio alterius’ mean?
The expression mention of one thing excludes its extension to others. This generally means that a general clause will not exist at the end.
What does noscitur a sociis mean?
A word is known by the company it keeps. Words of a Statute are understood in the context of the Statute itself. In Inland Revenue Commissioners v Frere [1965] AC 402, the House of Lords considered the phrase ‘interest, annuities and other annual payments’, contained in s 169 Income Tax Act 1952. The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities) were also annual. Therefore the word ‘interest’ was held to mean ‘annual interest’
What are some intrinsic aids in statutory analysis?
Interpretation provisions within the statute itself - the preamble to an Act. I.e. Psychoactive Substances 2016.
What are some extrinsic aids in statutory analysis?
- The Interpretation Act 1978 - laying down general rules.
- Dictionaries - when is has no set specific meaning, i.e. ‘oppression’ in R v Fulling 1987
- Hansard - to assist. Per Pepper v Hart 1993
- HRA 1998 - all legislation to be interpreted
