Statutory Interpretation (Advantages And Disadvantages)

Question 1

What are the advantages of the literal rule?

Answer 1

• It follows the words that the democratically elected Parliament have used. Parliament is our law-making body so the judiciary should apply the law as it is written therefore preventing unelected judges from making law.
• Another advantage is that it makes the law more certain as the law will be interpreted as it is written.

Question 2

What are the disadvantages of the literal rule?

Answer 2

• The literal rule assumes every Act is perfectly drafted and doesn’t account for situations which parliament may not have been able to foresee (e.g. in Whiteley v Chappell).
• Words may have more than one meaning so the Act can be unclear (e.g. “type” in the Dangerous Dogs Act 1991). So following the words exactly can lead to unjust decisions (e.g. in London and North Eastern Railway Co. v Berriman).

Question 3

What are the advantages of the golden rule?

Answer 3

• It respects the words of Parliament except in limited situations. Where there is a problem with using the literal rule the golden rule acts and an ‘escape route’.
• The fact it is only used in limited situations means it prevents judges from making law to any great extent.
• It allows the judge to chose the most sensible meaning of words in the Act if there are multiple meanings.
• Avoids absurd outcomes and decisions (e.g. Re Sigsworth)
• Overall, it avoids the worst problems of the literal rule.

Question 4

What are the disadvantages of the golden rule?

Answer 4

• Its is very limited in its use and is only used on rare occasions.
• Not really possible to predict when courts will use the golden rule.
• It is not always possible to define ‘absurd’. It is a subjective decision maybe giving the judge too much power.
• As it is an ‘escape route’ it may not be able to do that much (Michael Zander described it as a ‘feeble parachute’).

Question 5

What are the advantages of the mischief rule?

Answer 5

• Promotes the purpose of the law as it allows judges to look back at the gap in the law that the Act was designed to cover to see whether it is doing its job (e.g. In Smith v Hughes the purpose was to stop men being propositioned in the street by prostitutes).
• This approach is more likely to produce a ‘just’ result.
• Means judges try to interpret the law as parliament intended for it to work.
• Law Commission likes this rule, since 1969 they recommended that it should be the only rule used in statutory interpretation.

Question 6

What are the disadvantages of the mischief rule?

Answer 6

• There is a risk of judicial law making.
• Judges views on what they believed to be parliament’s intention can be different.
• Case of ‘Royal College of Nursing v DHSS’ had a 3-2 majority decision showing that judges do not always agree on when to use the mischief rule.
• May lead to uncertainty in the law making it hard for lawyers to advise clients on the law and the probable result of their case.
• The rule is not as wide as the purposive approach as it is limited to looking back at a gap in the old law, cannot be used as a more general consideration of the purpose of a law.

Question 7

What are the advantages of the purposive approach?

Answer 7

• Main adv is that it leads to justice in individual cases.
• A broad approach so allows the law to cover more situations than applying words literally.
• Useful where there is new technology which was unknown when the law was created (e.g. in R (Quintavalle) v Secretary of State).
• Once again allows judges to avoid the literal meaning where it would create an absurd situation.
• If this approach was used in Whiteley v Chappell then it is probable that the judges would have decided that Parliaments intention was to prevent people voting in another’s name and found the D guilty.

Question 8

What are the disadvantages of the purposive approach?

Answer 8

• May mean judges could chose to refuse to follow the clear words of Parliament.
• Some say it is impossible to assume Parliaments intentions, only the words of the statute can show what Parliament wanted. Therefore, unelected judges can make laws as they are deciding what they think the law should be.
• Hansard shows all arguments made in Parliament (both for and against) but the agreed outcome would be laid out in the Act so its difficult to discover the ‘intentions of parliament’ but they should be laid out in the Act.
• Leads to uncertainty in the law as impossible to know when this approach may be used, this makes it difficult for lawyers to advise clients.

Question 9

What are the 2 aids to interpretation?

Answer 9

Intrinsic and extrinsic aids.

Question 10

What are intrinsic aids?

Answer 10

an aid within the Act itself. This can include the short title, the long title, the preamble, etc.

Question 11

What is a case example of an intrinsic aid being used?

Answer 11

In Harrow LBC v Shah and Shah the Ds were charged under under s13(1)(c) of the National Lottery Act 1993. As s13(1)(a) allowed for a defence of due diligence s13(1)(c) did not mention the same defence, therefore, this was an important factor in the Divisional Court’s decision in saying this was an offence of strict liability.

Question 12

What are the advantages of intrinsic aids?

Answer 12

Some are placed in the statute by parliament to make the law clearer and, in turn, judges coming to the decision parliament intended. In older statutes the inclusion of a preamble setting out the purpose of the Act was useful. Additionally, in some Acts there is a definition sections defining the meaning of certain words or phrases (e.g. in the Theft Act 1968 for burglary there is a definition given for ‘building’ saying it also applies to ‘an inhabited vehicle or vessel’).

Question 13

What are the disadvantages of intrinsic aids?

Answer 13

• They are not included in every statute (e.g. modern statutes do not have long preambles).
• Some intrinsic aids (e.g. headings) may be placed there by printers and do not necessarily reflect parliament’s intentions.
• Definitions are not always included leading to uncertainty e.g. the word dishonesty in not defined in the Theft Act 1968.

Question 14

What are extrinsic aids?

Answer 14

Aids outside the Act which can help explain the meaning of words in an Act. Sources include: dictionaries of the time of the passing of the Act, and Hansard.

Question 15

What are case examples of dictionaries of the time being used?

Answer 15

a dictionary of 1847 was used in the case of Cheeseman v DPP because the Act in question was passed in 1847.

Question 16

What are the rules around the use of Hansard and why did they change?

Answer 16

Until 1992 there was a firm rule that the courts couldn’t use Hansard, however, in Pepper v Hart the House of Lords relaxed the rule and said Hansard could be used in a limited way. Hansard may be considered but only when the words of the Act are ambiguous or obscure or lead to an absurdity. Even then Hansard should only be used if there was a clear statement by the minister introducing the legislation, which would resolve the ambiguity or absurdity.

Question 17

What is Hansard?

Answer 17

The official report of what was said in Parliament when the Act was debated.

Question 18

What are the advantages of using Hansard?

Answer 18

• Hansard is available for everyone.
• It gives the entire debate about the Act in question. This means that not only is the minister’s statements can be found but the questions and discussions that led to the statement, maybe making the words in the Act clearer.

Question 19

What is a case example showing the advantage of the use of Hansard?

Answer 19

In AE Beckett & Sons (Lyndons) Ltd v Midland Electricity the meaning of s21 of the Electricity Act 1989 was in issue. Lord Phillips in his judgement said that reference to Hansard had “immediately made clear what had previously been obscure”.

Question 20

What are the disadvantages of Hansard?

Answer 20

• The particular words at issue may have not been mentioned in the debate.
• What was said may not make the words clearer. (e.g. in R v Deegan the Court of Appeal was concerned with the meaning of ‘folding pocketknife’ the court said that the statements made by the minister in the debate were not clear and refused to take them into account).
• Additional costs as lawyers feel obliged to read all the relevant debates in order to avoid being sued for negligence by their clients.

Question 21

How have law reform agency’s reports been introduced as extrinsic aids?

Answer 21

• Similar to Hansard, reports by law reform agencies were not allowed to be considered by the courts. In the Black-Clawson case in 1975 it was accepted that such a report should be looked at to discover the mischief or gap in the law which the legislation based on the report was designed to deal with.
• With the increased use of the purposive approach, the courts have become more prepared to look at Law Commission reports. In the Law Commission’s report for 2014-15 it was pointed out that their work had been cited in 404 cases in the UK and in 3 cases in other common law jurisdictions (e.g. Canada). So Law Commission reports are now an important extrinsic aid.

Question 22

What are the advantages of law reform reports as an aid to statutory interpretation?

Answer 22

• Reports by law reform bodies are issued after research, consultation and considerable preparation.
• Problems in the law are identified and reason for the proposed change are mentioned, helping the court understand the purpose for the new law.
• In many cases the report will include a draft Bill and if that Bill has become law without alteration, it is clear that Parliament agreed with the report, therefore, the report helps with finding parliament’s intentions.

Question 23

What are the disadvantages of law reform reports as an aid to statutory interpretation?

Answer 23

• In some cases the proposed reform will not be wholly accepted by the government and they will include different changes to the Bill.
• The Bill could also be changed during the legislative process.
• In the above situations the report does not reflect parliament’s intentions so is not helpful.
• Law Commission reports are only available for limited areas of law so there may not be any report on the particular point arising in court.

Question 24

Why can international conventions be used as extrinsic aids?

Answer 24

In cases where the statute has been passed to bring an international convention into English law, it is possible to look back to the original convention.

In Fothergill v Monarch Airlines Ltd the House of Lords decided that the original convention should be considered as it was possible that in translating the true meaning of the original might have been lost. The House of Lords also held that that an English court could consider any preparatory materials or explanatory notes published with an international convention as other countries allow it and it is important to get uniformity in the interpretation of international rules.