statutory interpretation (P1) Flashcards
what is statutory interpretation?
how judges interpret the language used in acts of parliament
why is statutory interpretation necessary?
-an act can contain ambiguous words (fisher v bell, goods on display in shops aren’t ‘offers’)
-words used are too broad (r v home secretary, ‘terrorism’ could have a very broad or very narrow meaning)
-progress of technology means words may need to be considered in light of new advances (royal college of nursing v DHSS, ‘doctors’ included nurses)
-there was an error in drafting (r v burstow, ‘inflict’ means cause [S20 OAPA1861])
what are the 4 rules of statutory interpretation?
-literal rule
-golden rule
-mischief rule
-purposive approach
what is the literal rule?
-gives the literal and grammatically correct meaning
-lord reid - ‘we seek not what parliament meant, but the true meaning of the words they used’
-whiteley v chappell (d tried to use the vote of a dead man, illegal to ‘impersonate any person entitled to vote, a dead person isn’t entitled)
what is the golden rule?
-results are given the literal meaning UNLESS it would result in absurdity
-lord wensleydale - ‘the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further’
-courts could choose between the meaning of a word (narrow approach)
-where the word has only one meaning, it can be modified to avoid absurdity (wide approach)
-alder v george (offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited palace, d was actually IN the palace)
what is the mischief rule?
-rule of statutory interpretation is used to prevent the mischief an act is aimed at
-lord diplock - use mischief rule if ‘it is possible to determine from the act the precise mischief the act was to remedy, and it is possible to say with certainty what additional words would have been inserted’
-smith v hughes (prostitutes soliciting from private windows, illegal to solicit in a public place)
what is the purposive approach?
-judges look to see what the purpose of the law was when interpreting statute
-recommended by law commission and EU
-extension of the mischief approach, doesn’t look for the gap but looks for what was meant
-r v registrar-general, ex parte smith (statutory right to claim birth certificate at 18, but it was believed D was trying to find birth mother to kill her, so denied access)
what are the 2 types of aids to statutory interpretation?
-internal/intrinsic
-external/extrinsic
what are internal/intrinsic aids?
-‘inside the act’
-introductory text/long title that may give clues that will help mischief rule/purposive approach
-explanatory notes included in margins to show what a section is about
-a glossary of key terms in some acts
what are external/extrinsic aids?
-‘outside the acts’
-historical context of the act
-dictionaries and textbooks
-previous commercial practice
-treaties with international law
-hansard (Record of what is said in parliament)(pepper v hart, did teacher have to pay tax on perks received through deduction of wages, hansard in the finance act)
-the interpretation act 1978 (Eg ‘he’ will always include ‘she’)
what is the impact of EU law on statutory interpretation?
-EU law favours purposive approach
-UK judges have to use the purposive approach for EU law, made it more likely to also use it for UK law
what are the advantages of the literal rule?
-respects parliamentary sovereignty
-provides certainty
-focuses on the mind of parliament
-respects the separation of powers doctrine
what are the disadvantages of the literal rule?
-can lead to unjust results
-assumed every act is perfectly drafted
-michael zander - ‘irresponsible’
-can undermine parliaments intentions
-not all acts have explanatory notes
what are the advantages of the golden rule?
-provides a way of avoiding the worst problems created by the literal rule while still respecting parliamentary sovereignty
what are the disadvantages of the golden rule?
-could lead to further inconsistency
-no definition of an absurd result
-michael zander - a ‘feeble parachute’