STATUTORY

INTERPRETATION
28 May 2014

http://sixthformlaw.info/index.htm
 SOURCES 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. f dom 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 in Grey 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 v London Borough 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 not ejusdem generis with "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 Community-centric
(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 Merger of CL & E

Chief Justice / Circuit Judges CJA 1873/75 & SCA 1981
Common Law & Customs Is Equity still relevant?
Defects /Deficiencies CLP v HTH 1946
King & Lord Chancellor Anton Pillar
Rise of Equity Mareva
Conflicts btwn CL & E Norwich Pharmacal
Maxims of Equity (Denning)
The Earl of Oxfords case (The Great Peace)
And resolution Your Opinion
 EXERCISE

Trafficking in Persons
Prof Lon Fuller