Statutory

interpretation
http://sixthformlaw.info/index.htm
rd
3 March 2014

Rules of English law

A. Judge made law (a) Common Law

(b) Equity

apply - Judicial Precedent

B. Formal Law (a) Statute

(b) Delegated Legislation

apply - Statutory Interpretation

C. European Union Law

apply - Human Rights Act 1998

Civil law

The subject is granted certain rights.

If these rights are violated, the person may sue
To recover those rights and / or damages.
The rights are vaguely stated.
It is for the courts to decide, on a case to case
basis,
Whether the persons rights have been
unlawfully violated.
This often involves a balancing of rights.
e.g. fdom of expression cf defamation ;
assault cf medical procedure

Common law
Under the Common Law, a persons rights are
residual
i.e. the person is allowed to do anything he
wants to do
unless there is legislation prohibiting that
action.
Thus the prohibition must be explicit.
Any inconsistency or vagueness in the
legislation
is interpreted in favour of the person

Is this clear?

Are the following

allowed in?
Bicycles
Tricycles
Roller skates
Push pram
Model car / aeroplane
Motorized wheelchair

interpretation
This is necessary when the one who makes
the rules
is not the one who implements /enforces
them.
We need to discover what was meant by what
was said.
How do we do this?
Should we stick to what was said?
Or should we go by what was intended
(or meant) by what was said?
How do we establish intention?

The mischief rule

The earliest rule of SI was the mischief rule.
Or the rule in Heydons case 1584
1. What was the CL before the making of the
Act.
2. What was the mischief / defect for which
the common law did not provide.
3. What remedy has Parliament resolved and
appointed to cure the mischief / defect.
4. The Judge is to make such construction as
shall suppress the mischief and advance the
remedy.

The mischief rule

This rule gives the court justification
for going behind the actual wording of the
statute
in order to consider the problem
that the statute was aimed at remedying.
It is clearly the most flexible rule of
interpretation,
but it is limited to using CL to determine
what mischief the Act was designed to
remedy.
(Historical approach )

Corkery v Carpenter(1951)
Shane Corkery, while drunk, was pushing his
pedal bicycle along the street. He was
charged with being in charge of a carriage
while drunk. The Act only covered carriage
and made no reference to bicycles.
The court used the mischief rule to decide the
purpose of the Act was to prevent people
from using private transport on a public
highway whilst intoxicated. The bicycle was a
form of transport and D was convicted.

The mischief rule

This was easier at that time,

because judges also drafted the legislation.
So judges knew the intent of Parl
quite intimately.
Today legislation is drafted by dumb
draftsmen
on the instructions of faceless Ministry
officials
instructed by clueless Ministers.

Rcn v Dhss 1981

It is an offence under the Abortion Act for
anyone
other than a qualified medical practitioner
to induce an abortion.
At that time, an abortion involved dingy
premises
and the innovative use of a metal coat
hanger.
Advances in medicine meant that
an abortion could be performed by a simple
drug
given by a nurse in a hospital. Is this wrong?

Tussle for power

There was a tussle for power

between the Courts and Parliament.
The Courts tried to frustrate Parl
by suggesting that Parl was not serious
about the changes Parl had wanted to make.
This resulted in Parl insisting
that the Courts implement exactly what Parl
said,
nothing more, nothing less.

Separation of powers

This is in keeping with the doctrine.

The Legislature (Parl) makes the law.
The Judiciary (the Courts) implements the law
as it was passed.
It is not the role of the courts
to second guess the legislature.

The literal rule

Duport Steel v Sirs(1980) Lord Diplock
noted:
Where the meaning of the statutory words is
plain and unambiguous it is not then for the
judges to invent fancied ambiguities as an
excuse for failing to give effect to its plain
meaning because they consider the
consequences for doing so would be
inexpedient, or even unjust or immoral.

The literal rule

But language, even (especially?) English,
is not a lingo of mathematical precision.
Can one possibly say exactly what one
means,
or mean exactly what one says.
The idea that one could has led
to some unfortunate outcomes.

Fisher v Bell(1960)
The Restriction of Offensive Weapons Act
1959 made it an offence to offer for sale
offensive weapons. Bell, a shopkeeper,
displayed a flick knife in his shop window.
On appeal, it was held that Bell had not
offered for sale the knives. In the law of
contract, a display in a shop window is merely
an invitation to treat.
Note Parliament got pissed and changed the
law to make displaying an offensive weapon
an offence.

(Dis)Advantages
The literal rule requires accuracy in
legislation,
which is a good thing.
But does placing such emphasis assume
an unobtainable perfection in draftsmanship?

The golden rule

Lord Wensleydale inGrey v Pearson(1857)
HOL that:
The grammatical and ordinary sense of the
words
is to be adhered to unless that would lead
to absurdity or repugnance or inconsistency
with the rest of the instrument.
The grammatical and ordinary sense of the
words
may be modified so as to avoid the absurdity
and inconsistency, but no farther.

Rookes v Barnard
(1964) HL
per Lord Evershed:
I think, [in] only two cases it is permissible
to depart from the ordinary and natural sense
of the words of an enactment.
It must be shown either
that the words taken in their natural sense
lead to some absurdity or
that there is some other clause in the body of
the Act inconsistent with, or repugnant to,
the enactment in question
construed in the ordinary sense of the
language in which it is expressed."

Adler v George(1964)

Under s 3 of the Official Secrets Act 1920,

it was an offence to obstruct HM Forces
while in the vicinity of a prohibited place.
Adler was charged with obstructing under s 3.
He argued that he was not in the vicinity of
a prohibited place but in it.
The court read in the words or in to the
statute
to cover the present circumstances.

Re Sigsworth(1935)
A son killed his mother. The mother died
intestate.
Her estate would go to her next of kin, i.e. her
son.
There was no ambiguity in the words of the
Act.
The court would not let the son benefit from
his crime.
The literal rule should not apply.
The golden rule was used to prevent
the repugnant situation of
the son inheriting from a murder.

Sir rupert Cross

But how does one apply the three (3)
often conflicting approaches to
interpretation?
When must a judge use one and when
another?
Cross Unified Contextual Approach
Arranged the rules of SI into
Some semblance of order
BUT Cross was a mere academic
Not a senior judge (thus no JP applied)

Unified Contextual Approach

First, because of the separation of powers,

Courts must apply the literal rule
i.e. the clear expressed intention of the Parl
If this would result in an absurd outcome,
The court may use the golden rule
to modify the words and remove the
absurdity (only).
If the words used are ambiguous or unclear,
then use the mischief rule to discover the
purpose

but
What is an absurdity?
no test exists to determine what is an
absurdity.
In the cases under the literal rule,
the judges were not swayed
by the argument that their decision
would result in an absurd outcome.

Magor vst mellons Newport corpn (1950)

Lord Denning MR stated: we sit here to find
out the intention of Parliament and carry it
out, and we do this better by filling in the
gaps and making sense of the enactment
than by opening it up to destructive analysis.
This attitude was criticised by Lord Simmons
who called this a naked usurpation of the
legislative function under the thin disguise of
interpretation.
Lord Simmons said that if a gap is disclosed,
the remedy lies in an amending Act (by Parl).

Intention
How can Parliament's intentions be
determined?
Should judges really be refusing to follow the
clear words of Parliament?
The purposive approach is used by most
European (civil law) countries when
interpreting legislation.
It is also the approach which is taken by the
European Court of Justice in interpreting EU
law.
And the UK is a member of the EU.

Three Rivers District Council

v Bank of England [1996]
Whilst the English courts continue to place
their emphasis on the language of the
statute, there is an increasing willingness to
resolve ambiguities in domestic legislation by
reference to the statutory purpose (and even
to read words into the statute where this is
inadequate to give effect to an EC directive)

Aids to interpretation
One obvious advantage to the literal rule
intention is understood from the words used.
In a purposive approach, one goes beyond
this
to try to discern the intended meaning.

The purposive approach

If you are not limited by the words
How then do you discover intention?
Notham vLondonBorough of
Barnet[1978] CA
per Lord Denning MR:
the purposive approach is one that will
"promote the general legislative purpose
underlying the provisions"

Aids to Interpretation

Internal Aids
These are aids within the statute itself
The Long / Short Title
The Preamble and Definitions sections
Other sections in pari materia

Aids to Interpretation

External Aids
(These are aids outside that statute)
Guiding statutes e.g. HRA 1998, IA 1978
Other statutes in pari materia
(whether existing or repealed)
Judicial Precedent, Dictionaries
Academic works by learned authors
Parliamentary Materials

Hansard
Can / Should the Courts refer to Hansard in
order to understand the purpose of the
Legislation?
To do so would cross the fine line that
separates Politics from Judiciary.
Not to do so would be to grope in the dark
when one could just switch on the light
Denning MR

Hansard
Pepper v Hart [1993] overturned Black
Clawson
Their Lordships ruled (6:1) that Hansard could
be referred to by courts where:
Legislation is ambiguous or obscure, or
leads to an absurdity
The material relied upon consists of
statements by a minister promoting the Bill
The statements relied upon are clear

Presumptions
There are many presumptions in Common
Law.
The Courts will not depart from these
presumptions unless the words used by Parl
are clear.
e.g.
Person charged is presumed to be innocent
Parl does not intend retrospective legislation
Legislation is not intended to cover the Crown
Parl will not avoid its international obligations
(these presumptions apply in varying
degrees)

Pickstone v Freemans plc(1998)

The question was whether a woman
warehouse operative employed on like work
to the male warehouse operatives, so she
could not bring a claim under section 1(2) (c)
of the 1970 statute for work of equal value.
This was a literal interpretation of the statute.
The HOL decided that the literal approach
would leave the UK in breach of an EU
directive. It therefore used the purposive
approach to sort out the case.

Rules of language
Ejusdem generis where a list of words are
followed by general words, the meaning of
the general words are limited to the genus of
the list
Expressio unius est exclusio alteris the
expression of the one is the exclusion of the
other. Thus mention of the thing will mean
the exclusion of what was not mentioned.
Noscitur a sociis the meaning of a word is
known by the company that it keeps. Thus
the words must be looked at in the context of
what was said.

Wood v Commissioner of Police

of the Metropolis(1986)QBD

An accidentally broken glass was notejusdem

generiswith "any gun, pistol, hanger, cutlass,
bludgeon or other offensive weapon"

Powell v kempton 1899

A statute prohibited the keeping of a house,
office,
room or other place for betting. The
defendant kept an
uncovered enclosure at a race course for
betting.
The House of Lords held that the enclosure
was not an other place within the meaning
of the statute.
It was not ejusdem generis with the
particular places previously listed as they
were all indoor places.

Rules of language
Ejusdem generis where a list of words are
followed by general words, the meaning of
the general words are limited to the genus of
the list
Expressio unius est exclusio alteris the
expression of the one is the exclusion of the
other. Thus mention of the thing will mean
the exclusion of what was not mentioned.
Noscitur a sociis the meaning of a word is
known by the company that it keeps. Thus
the words must be looked at in the context of
what was said.

Tempest v kilner 1846

"goods, wares and merchandise"
did not include stocks and shares

R v harris 1836
Harris bit of the end of a womans nose. The
prosecution alleged the bite was included in
"stab, cut or wound". This implied that some
instrument must be used.
Held: it was evidently the intention of the
legislature, according to the words of the
statute, that the wounding should be inflicted
with some instrument, and not by the hands
or teeth.

Rules of language
Ejusdem generis where a list of words are
followed by general words, the meaning of
the general words are limited to the genus of
the list
Expressio unius est exclusio alteris the
expression of the one is the exclusion of the
other. Thus mention of the thing will mean
the exclusion of what was not mentioned.
Noscitur a sociis the meaning of a word is
known by the company that it keeps. Thus
the words must be looked at in the context of
what was said.

Irc v frere 1965

Interest meant annual interest.If the words
- other annual interest had been left out,
the interest could have meant any interest weekly, monthly and so on.

Muir v Keay(1875) QBD

D ran premises called The Caf; it was found
open during the night, and seventeen women
and twenty men were there. They had been
supplied with cigars, coffee, and ginger beer,
which they consumed.
Held: The house was kept open for public
refreshment, resort, and entertainment,
and required a licence.

If the words used

are crystal clear?

Are the literal / golden / mischief rules

(or any other approaches)
still available?
Can a judge still apply the clear
albeit ridiculous words of a statute?
Or must the judges only use
a purposive approach?

Human rights act 1998

S 3 HRA 1998 : requires a court to read and
give effect to legislation in a way compatible
with the ECHR.
The ECHR inter alia ( among other things)
disallows discrimination e.g. on the basis of
colour, class creed, gender (sex) or sexual
orientation Art 14.
Thus in Mendoza v Ghaidan 2008 HOL
his or her wife or husband
was read as including his/her wife /husband

Mendoza v ghaidan
2008 hol
The purpose of the legislation must be
applied
Even in the face of clear (conflicting)
words.
The purpose of the legislation in this case,
in light of the Human Rights Act 1998
(which is to be applied retrospectively)
is to make English law more Communitycentric
(in this case, non-discriminatory)

Before I forget

I shall see you for Lectures

on Monday 10th March (10 to 1)
on Delegated Legislation
and Tutorials
on Monday 11th March (2 to 3.30 OR 3.30 to
5)
on Common Law and Equity

Draft an outline
Norman Conquest
Chief Justice / Circuit
Judges
Common Law &
Customs
Defects /Deficiencies
King & Lord
Chancellor
Rise of Equity
Conflicts btwn CL &
E
Maxims of Equity
The Earl of Oxfords
case

Merger of CL & E
CJA 1873/75 & SCA
1981
Is Equity still
relevant?
CLP v HTH 1946
Anton Pillar
Mareva
Norwich Pharmacal
(Denning)
(The Great Peace)
Your Opinion

Exercise
Trafficking in Persons
Prof Lon Fuller