Statutory Interpretation A03 8/14 Flashcards
1
Q
Adv Literal Rule (consistency H)
A
- ✅ Consistency
- Judges will agree on the ordinary meaning of words
- All use the same approach, all decisions will be consistent
- Complies ROL (certain)
- ❌ Inconsistencies
- Can be more than one meaning for a word
- Judges may choose different meanings, different outcomes in similar cases
- Contradicts ROL (uncertain) goes against whole point of literal rule
2
Q
Adv Literal Rule (intentions H)
A
- ✅ Expresses Parliament’s True Intentions
- Takes the words and applies them as they are by a democratically elected body
- Complies Par Sovereignty as they are applying it directly as it is written
- ❌ Leads to Injustice and Absurdity
- The Literal Rule has created injustices in many cases e.g. Berriman
- This can’t be P intentions because they would not have intended absurdities
- Lack common sense, applied exactly as written regardless of the outcome
- Contradicts ROL (enforced with uncertainty) doesn’t create justice
3
Q
Adv Literal Rule (time H)
A
- ✅ Limits time in court
- Lawyers don’t need to spend time arguing over meanings of words as dictionary provides meaning
- Saves legal costs for parties
- Complies ROL (ascertainable) encourages more people to seek justice
- ❌ Rigid and Lacks Flexibility
- Law cannot develop as judges have to apply the normal grammatical meaning even if it leads to a bad decision
- Law won’t develop if bad decisions are followed and applied
- Up to Parliament to change wording of an act to avoid injustices. Won’t have time in busy schedule
- Judges being accused of being too literal
4
Q
Adv Golden Rule (injustice)
A
- ✅ Avoids Injustices of The Literal Rule
- Common sense approach resulting in good decisions
- ✅ Also more flexible
- More useful in enacting Parliament’s intentions if they don’t draft a perfect law because P would not have intended an injustice
5
Q
Adv Golden Rule (Par Sov)
A
- ✅ Respects Parliamentary Sovereignty
- Doesn’t give judges complete freedom (can amend words but not completely change them)
- Strikes a balance between providing justice and maintaining Par Sovereignty ❌ Cannot be sure it’s Parliament’s Intentions
- No clear way to know this and therefore no clear way on how to use the rule
- Allows judges to make their own decisions and removes control from Parliament
- Judge may make a decision that contradicts the wills of parliament
- Contradicts Par Sovereignty + Sep Of Powers, reduces democracy with potentially bias law enforcement
6
Q
Adv Golden Rule (check)
A
- ✅ Provides a check on the Literal Rule
- Literal rule too rigid and golden rule checks this
- The 2 different applications increase flexibility and allow judges to avoid injustice without completely changing statute
❌ Not an effective check of the Literal Rule - Not possible to predict when to use the rule and which view will be used
- If narrow view chosen then multiple alternative meanings can be chosen from
- If wide view then the words could be changed in multiple different ways
- Micheal Zander - ‘unpredictable safety valve’
7
Q
Adv Mischief Rule (flexible)
A
- ✅ Flexible
- Judges can correct errors and avoid absurdities
- This is fair and allows common sense to be applied to the law to make it fairer
- More accurate decisions
- Encourages people to seek justice if they feel the judge will use common sense to ensure they get a fair decision
8
Q
Adv Mischief Rule (P intentions)
A
- ✅ Achieves Parliament’s Intentions
- Takes steps to discover the intent of Parliament when the Act was made
- Complies with Par Sovereignty as focus is on what they wanted to achieve
- Improves the law by identifying mischief and correcting it, allows law to develop and adapt to social/economic change
9
Q
Adv Mischief Rule (consistency)
A
- ✅ Consistent and Saves Time
- Clear guidelines in place
- Complies with ROL (creates certainty) in application
- Judges can add to the Act to overcome errors avoiding the need for Parliament to make more legislation (18 months) - saves P time
10
Q
Dis Mischief Rule (reliant0
A
- ❌ Relies too much on Extrinsic Aids
- Can take lot’s of time and delay proceedings
- Can be unreliable at times which promotes inconsistency in the law
- Contradicts ROL (not certain, not ascertainable)
- Deters people from seeking justice as they may feel costs will be ramped up and may result in unfair decision
11
Q
Dis Mischief Rule (unuseful)
A
- ❌ Limited Use due to the Purposive Approach
- Less appropriate as both rules are very similar but Purposive is not limited to reform of statutes but looks deeper into the intention’s of Parliament
❌ Judges are Reluctant to use it - Some judges would rather use other rules to avoid being accused of judicial law making
- Question whether the rule is needed anymore
- Can be seen as old, useless and contradicts ROL (uncertain)
- Less appropriate as both rules are very similar but Purposive is not limited to reform of statutes but looks deeper into the intention’s of Parliament
12
Q
Dis Mischief Rule (uncertainty)
A
- ❌ Uncertainty in the Law
- May lead to uncertainty as it’s impossible to know when a judge will use the rule and what the outcome will be
- Reduces predictability of the law, making it difficult for lawyers to advise clients correctly and predict the outcome of cases
13
Q
Adv Purposive Approach (intentions H)
A
- ✅ Expresses Parliament’s Intentions
- Use Of extrinsic aids finds Parliament’s intent and uses this to resolve the issue with the statute
- Therefore clearly upholding Par Sovereignty as they are specifically looking for what was intended
❌ Negative of using Extrinsic Aids - Only works if the judge can find Parliament’s intentions
- Adds to length and cost of the case
- Using Hansard can result in judges looking at irrelevant material (views of MP’s who disagreed) + also restrictions on extrinsic aids
14
Q
Adv Purposive Approach (popular H)
A
- ✅ Modern and Popular
- Allows the judge to be an activist
- Lord Denning strongly in favour and believed it was effective in seeking Parliament’s intentions
- Also favoured by EU, modern and regarded as most appropriate
❌ Judicial Attitude - Disagreement between judges whether purposive approach should be used
- Lord Denning ⬆️ but Lord Diplock and Lord Scarman ⬇️ thought it was Parliament’s job to make amendments
15
Q
Adv Purposive Approach (further H)
A
- ✅ Goes Further Than Other Rules
- Allows for more flexibility than mischief and doesn’t need to find mischief in the act
- Gives judges more discretion and produces outcomes society would approve of
❌ Inconsistency - Judges using their own discretion is subjective, may be different views on what Parliament Intended
- Contradicts ROL (creates uncertainty)
- Makes it difficult for lawyers to advise clients on law and outcome of cases
