Statutory Interpretation (see also legislation)

Question 1

What Section of the Human Rights Act of 1998 has had a big impact on Statutory Interpretation?

Answer 1

Section 3

Question 2

What does section 3 of the Human Rights Act of 1998 say?

Answer 2

Interpretation of legislation.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

Question 3

What are the Three Traditional Rule of Statutory Interpretation?

Answer 3

1) The Literal Rule, 2) The Golden Rule 3) the Mischief Rule

Question 4

Explain what the Literal Rule is and what a judge is to do when using the rule.

Answer 4

The Literal Rule is the more traditional approach to interpreting statues. When using the literal rule the judge is required to consider what the legislation actually says rather than what it might actually mean.

Question 5

What is one of the major weaknesses of the literal rule?

Answer 5

The essential weakness of the literal rule is that it sometimes wrongly assumes that there is a single, literal understanding or words.

Question 6

What is the Golden Rule?

Answer 6

The Golden Rule is a traditional rule of statutory interpretation. It is considered to be an extension of the literal rule. It is used when the result of using the literal rule leads to an obviously absurd result.

Question 7

How can the courts NOT use the Golden Rule?

Answer 7

A court is not to use to Golden rule to ignore, replace and legislative provisions simply on the bases that it does not agree with them. In order to use the Golden Rule, a Court much find genuine difficulties before it declines to use the literal rule.

Question 8

In the text Sources of Law, by Gary Slapper, two versions of the Golden Rule are mentioned. What are they and when are they used?

Answer 8

1) The Narrow Meaning - Used when there are two contradictory meanings to a prticular word used ina legislative providion, or if the provision is simply ambiguous in its effect. 2) The Wider Meaning - used when there is only one possible meaning to the words of a statutory provisions, but the courts feel to adopt the literal interpretation would lead to inconsistency, absurdity and inconvenience.

Question 9

What is the Mischief Rule, when was it introduced?

Answer 9

The Mischief Rule is the most flexible traditional rule to statutory interpretation. It was introduced in Heydon’s Case 1584

Question 10

What are the 4 questions the Judges should ask when using the Mischief Rule?

Answer 10

The four questions, which are laied out in Heydon’s Case are 1) what was the common law before the passing of the statute. 2) What was the mischief in the law which the common law did not adequately deal with. 3) What remedy for the mischief had parliament intended to provide? 4) What was the reason for parliament adopting that remedy?

Question 11

Which of the three traditional rules should be used and when?

Answer 11

There is no hierarchy that prescribes how to use the rules. The Golden Rule should be used only if the Literal Rule results in an obscurity, however, the courts are free to use any or all of the rules when interpreting a statue.

Question 12

What are secondary aids to interpretation?

Answer 12

Secondary Aids to interpretation can be used by the courts to assist them in interpreting statutes. they can be intrinsic or extrinsic or presumptions.

Question 13

What are the Intrinsic Secondary Aids?

Answer 13

Intrinsic aids refer to the statue itself. They include the Long Title, Preamble, Schedules, Section Headings, Marginal Notes and Punctuation.

Question 14

What are the Extrinsic Secondary Aids?

Answer 14

Extrinsic Secondary aids allow judges to look outside of the act itself. These include Dictionaries, textbooks, earlier statutes, travaux preparatoires and within limits, Hansard.

Question 15

What is Hansard and when can it be used for statutory interpretation?

Answer 15

Hansard are records of the Parliamentary debates that take place before a Statute is enacted. They were historically not allowed to be used as aids to statutory interpretation. However, since the case of Pepper v Hart, Hansard can be referred to in limited situations. e.g. when applying the mischief rule, the courts can refer to hansard to determine the particular mischief the parliament was trying to right when enacting the legislation.

Question 16

What are the common presumptions?

Answer 16

1) Against the alteration of the common law (meaning if Parliament intends to alter the law under common law, the statute must expressly state that is what it is doing). 2. In Favor of the assumption that a mental element is required for a criminal office (meaning, the courts assume that statutes governing criminal offences assume that there must be the “mens rea” of the crime, unless the statue expressly states otherwise. 3) Statutes will not be retroactively effectively, unless expressly stated. 4)Against deprivation of liberty 5) Against Application of the Crown, 6) against breaking international law. 7) In favor of words taking their meaning from the context in which they are used…

Question 17

What are the subcategories of the presumption “ In favour of words taking their meaning from the context in which they are used?

Answer 17

1) Noscitur a sociis. 2) ejusdem generis 3)expression unius exclusio alterius.

Question 18

What is Noscitur a sociis?

Answer 18

Noscitur a sociis rule is applied where statutory provisions include a list of examples of what is covered by the legislation. It is presumed that the words used have a related meaning, and are to be interpreted in relation to each other.

Question 19

What does ejusdem generis mean?

Answer 19

ejusdem generis rule applies in situations where general words are appended to the end of a list of specific examples. The repsumtption is that the general words have to be interpreted in line iwth the prior restructive examples. e.g horeses, cattle sheet and other animals. other animals would not include dogs and cats or lions and bears.

Question 20

What is expression unius exclusio alterius?

Answer 20

where a statue seeks to establis a list of what is covered by its provisions, then anything not expressly included in the list is specifically excluded.

Question 21

What is expression unius exclusio alterius?

Answer 21

where a statue seeks to establis a list of what is covered by its provisions, then anything not expressly included in the list is specifically excluded.