Unit 4 - Statutory Interpretation Flashcards
what are the rules of construction?
the literal rule
the golden rule
the mischief rule
the purposive rule
what is the literal rule?
words must be given their plain and ordinary meaning
if the words are clear, they must be applied even though the intention of the legislation may have been different t
what are problems with the literal rule?
might produce absurd or obnoxious results
its use might defeat the intention of parliament
can lead to injustice
what is the golden rule?
adaptation of the literal rule
where there are two meanings of a word, they should be given their ordinary meaning as far as possible, but only to the extent they do not produce an absurd result
what are the two ways in which the golden rule can be applied?
narrow sense :
there is some ambiguity in the words themselves
wider sense:
to avoid a result which is obnoxious to principles of public policy
e.g. son murders mother, cannot inherit the house because this is obnoxious
what is the mischief rule?
legislators intention
looks at the ‘mischief’ the legislature is trying to prevent
what is the purposive approach?
largely overtaken the mischief rule
judges look at the reason why the statute was passed and its PURPOSE
even if this means distorting the original meaning of the word
widely used in European law - judges must consider the policy behind the words
why must the purposive approach be used when interpreting EU law?
EU legislation is drafted in a very different way to UK law
follows civil law tradition - simplicity of drafting and high degree of abstraction
what is the impact of the Human Rights Act 1998 on the principles of statutory interpretation?
the human rights act ‘so far as it is possible’ must be read and given effect in a way that is compatible with convention rights
what are the three types of rules of language
noscitur a sociis (closed list)
eiusdem generis (open list)
expressio unius est exclusio alterius (closed list)
what is noscitur a sociis?
recognition by associated words
‘known by the company it keeps’
word derives its meaning from surrounding words
e.g. cat, dog, hamster, gerbil
SPECIFIC WORDS
what is eiusdem generis?
of the same kind of nature
when a general word follows a list of specific words
what type are the specific words?
GENERAL WORDS
What is expressio unius est exclusio alterius?
expressing one thing excludes another
mention of one or more specific things may be taken to exclude others of the same type
e.g. lands houses and coal mines
this would include only coal mines, not other types of mines
what are the different types of aids to interpretation?
intrinsic aids
extrinsic aids
what are intrinsic aids?
NOT THE STATUTE ITSELF
parts of the statute - long and short titles preamble punctuations headings
