Statutory Interpretation

The need for statutory interpretation

  • Hundreds of acts are passed each year by parliament, the meaning of the law in these statutes should be clear and explicit but this is not always achieved, to combat this parliament has included sections defining certain words used in the statue, these are known as interpretation sections.
  • For example, in the Theft Act 1968, the definition of theft is given in s 1 and then s 2-6 defines the words used in that definition of theft. To help the judges with general words, parliament also passed the Interpretation Act 1978 which makes it clear that unless in certain cases he also means she and singular also mean the plural.
  • Although the aids above can be quite useful there are still many disputes over the meanings of Parliamentary Acts. In cases like this, the court's task is to decide the exact interpretation of a particular word or phrase.
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The need for statutory interpretation

  • There are several reasons that meanings may be unclear:
  • A broad term - Some words may cover several possibilities which can lead to problems with how broad an Act should be. The Dangerous Dogs Act 1991 includes a phrase stating: 'any dog of the type known as the pit bull terrier'. This has led to issues such as what the word type means, is it the same as 'breed'. In the case of Brock V DPP this was a key point of dispute and the QBD court decided that 'type' had a wider meaning than 'breed'. It could cover dogs which were not pedigree pit bull terriers but had a number of similar characteristics of such a dog.
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The need for statutory interpretation

  • Ambiguity - This is where a word has two or more meanings and therefore it may not be clear which one to follow.
  • A Drafting Error - The Parliamentary Counsel who drafted the original bill may have made an error when drafting the bill, this is more likely to happen when a bill is amended several times over or when a bill is the result of several older ones merged together and the terms used in it differ.
  • For example, in ** 18 and 20, the word 'cause' is used, this has caused i**ues with interpretation until in R V Burstow it was stated that while the words did not have exactly the same meaning it would be absurd to distinguish between them.
  • New developments -  new technology may mean older acts may not cover present-day situations. For example in the case of the Royal College of Nursing V DHSS where new medical science practices had changed since the previous passing of the Abortion Act in 1967.
  • Changes in the use of language - words can change their meaning throughout time, this was the case in Cheeseman V DPP
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The Literal Rule

  • Under this rule, the words are given their plain, ordinary or literal meaning even though this may give an absurd outcome.
  • The idea was expressed by Lord Esher in R V Judge of the City of London Court when he said: 'If the words of an act are clear then you must follow them even though they may manifest absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity.
  • The rule was developed in the early 19th Century and was widely used for the first part of the Twentieth Century and is still used as the starting point for interpreting any legislation.
  • Cases:
  • Whiteley V Chappell - Pretended to be a dead person when voting, acquitted as the law stated it was illegal to impersonate person entitled to vote as a dead person I not technically entitled to vote.
  • London & North Eastern Railway Co. V Berriman - Claim failed as lookout did not have to be present as oiling is not repairing or relaying which are the criteria for needing one.
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The Golden Rule

  • The Golden Rule is an adapted version of the Literal Rule which means the literal definition is followed only allowing for differing interpretation when an absurd outcome is going to occur.
  • There is some argument over how far the rule should go. 
  • The first is quite narrow outlined by Lord Reid in Jones V DPP where he outlined that the where there are two meanings of words or phrases and one will lead to an absurd result then the other definition can be used but if there is only one then it must be followed even if it will result in an absurd result.
  • The second application states that even where there is only one definition which will lead to an absurd result then the court can use the rule to modify the words in order to avoid the problem.
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The Golden Rule - Cases

  • Cases:
  • Adler V George - D claimed that because he obstructed HM Forces inside a prohibited place he could not be liable as the statute literal stated they could not do it inside the vicinity of a place. The judge ruled that it would be absurd to distinguish the difference and so he was guilty.
  • Re V Sigworth - Son murdered mother, law aid he would get her estate as she did not leave a will but the judge was not willing to allow a murderer to benefit from their crime and so adapted the meaning of the act.
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The Mischief Rule

  • This gives judges more discretion than the previous two rules.
  • The definition comes from the case of Heydon where it was stated there are 4 points to consider:
  • What was the common law before the making of the Act?
  • What was the mischief and defect for which the common law did not provide?
  • What was the remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?
  • The true reason of the remedy. Then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy.
  • In simpler terms, this means the court should look at what the law was before the Act was passed to find out what the gap or 'mischief' was that needed changing. The court should then interpret the Act in such a way that the gap is covered.
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The Mischief Rule - Cases

  • Cases
  • Smiths V Hughes - Several prostitutes that had been arrested appealed against their convictions as in the Street Offences Act it did not literally cover windows and balconies as places it was illegal to solicit for prostitution, the judge used the mischief rule to find them guilty.
  • Eastbourne Borough Council V Stirling - A taxi driver was eventually found guilty as although he was technically on private land when parked on a taxi rank he would have got customers from the street which would have been against the 'plying for hire in the street' law.
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The Purposive Approach

  • This rule goes beyond the mischief rule, as it is not just looking to see what the gap was in the old law but involves judges determining what Parliament meant to achieve.
  • Cases
  • R V Registrar-General, ex parte Smith - the court faced issues when an adopted convicted murderer requested for his original birth certificate. The organization that would provide this information was required to give the information and options for counseling, but a psychiatrist had ruled that he may be hostile towards his natural mother and so despite the plain language used in the act the courts used the purposive approach to rule that the Registrar-General did not have to supply the information.
  • R V Human Fertilisation and Embryology Authority -  House of Lords had to decide whether organisms created using Cell Nuclear Replacement (CNR) counted as embryo's, in a previous act it said that an 'embryo means a live human embryo where fertilization is complete'. This act was established when there was limited technology available to create embryos whereas in 2003 it is possible to essentially clone cells using CNR. The HoL used the purposive approach to say the previous act covered the new kind of embryo.
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Literal V Purposive

  • In the case of Cheeseman, a man was caught masturbating in a public lavatory, it is not permitted for this to occur at the discomfort of passengers. The police officers that caught him were said to not be technically passengers as defined in an 1847 act.
  • The courts held the original act was correct and therefore allowed the D to appeal against the conviction. In another act, the street was defined as also being any public area under control of the local authority.
  • Lord Justice Bingham deliberated the meaning of the word street using the various dictionary definitions eventually coming to the conclusion that as the police were in the lavatory to apprehend anyone committing offenses and so, therefore, are not passengers.
  • This case illustrates several issues with statutory interpretation, especially when the words are taken literally.
  • It could be argued that just because they were not passengers does not take away from the fact they were present in the bathroom were there to stop this previously reported behavior.
  • Many would argue that the purposive approach should be used in cases like this to avoid problems like in Cheeseman.
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Literal V Purposive - Cont.

  • It is debated whether all the words should be taken using their literal meanings or whether it should be acknowledged that an act may not cover all the situations that may occur and that words cannot always be exact.
  • In European law, the purposive approach is always usually taken, this is very important as laws are issued in several different languages and so it would be very difficult and even impossible to use the literal definitions if words as it is not always possible to have an exact translation from one language to another.
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Internal Aids

  • Judges will also use certain aids to help with interpretation, these may be internal or external.
  • Internal - these are aids that are present within the act or statute itself that may make it easier to understand. 
  • Examples include things like: the long or short title of the statute, many older statutes also feature preambles which set out the purpose for enacting that particular statute, modern statutes do not have preambles or only contain a very brief one, for example in the Theft Act 1968 it is stated that the Acts purpose is to modernize theft law.
  • Some acts will also feature specific interpretation sections within them. Again in the Theft Act S4(1), it states that 'property' includes 'money and all other property real or personal, including things in action and other intangible property'.
  • The other useful internal aids are any headings before a group of sections and any schedules attached to the act. There are also usually marginal notes explaining different sections but these are not normally regarded as giving parliaments intention as they will have been inserted after the parliamentary debates and are only helpful notes place in by the printer of the act.
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Internal Aids - Cont.

  • It is also possible to look at other sections in the Act as these may help.
  • In Harrow LBC V Shah & Shah - the D's were charged under the National Lottery Act 1993, the section they were charged under did not include any words saying whether MR was required or not and also did not contain any provision for a defence of 'due diligence', however, another section laid out the defense of due diligence, this was an important point for the divisional court which eventually came to the conclusion this crime was an offence of strict liability.
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External Aids

  • These are aids outside the act that can help explain the meanings and purpose of the act.
  • To be used the source has to be undisputed:
  • Previous Acts of Parliament on the same topic
  • The historical setting
  • Earlier case law
  • Dictionaries of the time - where a dictionary is used, it must be one published at the time the act was passed as words can change their meanings over time, in the case of Cheeseman a dictionary from 1847 was used as that is when the act was published.
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External Aids - Cont.

  • Originally it was established that extrinsic aids other than those established above, in three cases the court's attitudes have changed, these are:
  • Hansard - the official report of what was said in parliament when the act was debated. Originally there was a firm rule against the use of this, but since the late seventies this has been disputed between judges and the Law Lords of the time, eventually, in 1993 it was said that Hansard could be used but in a limited way when terms are ambiguous, obscure or lead to an absurdity. Many argued against this saying it would be very costly and time-consuming. it was also established that wider use of Hansard is only permitted when the act has established an international convention as it is important to interpret the statute purposively and consistently with any European materials and the court can look at ministerial statements even when there is no ambiguity or obscurity. Since 1992, the use of Hansard has been referred to in a number of cases, it has been difficult to say whether it has been a success or not, as it has definitely offered another avenue of interpretation but is more expensive.
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External Aids - Cont.

  • Law reports on reform from organizations like the Law Commission - Again these were not allowed to be considered previously by the court, this was then relaxed in 1975 in the Black-Clawson case where it was accepted that the reports could be used to see and fill the gap caused by mischief in legislation, due to courts taking a more purposive approach courts have been much more willing to look at the Law Commission Reports and now they are held as an important external aid to statutory interpretation.
  • International conventions, regulations or directives which have been implemented by English legislation.
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Effect of EU law

  • The purposive approach is the one preferred by EU courts when interpreting their own legislation and is also the approach taken by the European Court of Justice when interpreting European Law
  • Since the UK became an EU member in 1973 the influence of the European preference for the purposive approach has affected the UK court in two ways, first, that any law passed as conforming to EU law should be interpreted using the purposive approach. Second, the fact that judges have had to use the purposive for the past 40 years it has made them more accustomed to it and more likely for them to apply it to English law.
  • Despite Brexit, the UK judges are likely to use the purposive approach.
  • Where the EU law needs to be interpreted the courts will look not only at the wording but also the purpose of the law as per the Treaty of Rome, which sets out the duties of the European member states and in it it says member states were required to take all 'appropriate measures ... to ensure fulfillment of the obligation'.
  • The Court of Justice in the Marleasing case 1992 ruled that this included interpreting national law in the light and aim if the European law, this will no longer apply if Brexit occurs.
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Effect of the Human Rights Act 1998

  • S3 of the HRA says that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with rights in the ECHR.
  • This applies only to any case where one or more human rights are concerned.
  • An example of this is in Mendoza V Ghaidan which concerned the interpretation of the Rent Act 1977: previously the Act allowed unmarried parties to succeed the tenancy when the original owner dies. The question, in this case, was whether unmarried same-sex couples could also do this. Before the Act was utilized the Lords ruled they could not do this, however, the court of appeal then ruled that this was wrong as a matter of human rights it is forbidden to discriminate against characteristics such as sexuality which resulted in the courts in interpreting the Act to include same-sex couples.
  • This was then confirmed by the Court of Appeal in the case of Fisher V Bell where it was said there is a legal meaning of the words 'offer for sale' and this does not include goods displayed in a shop window as that is only an invitation to treat.
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Advantages of the Literal Rule

  • The main advantage is that the rule fully follows the words of Parliament and as it is our ordained as our law-making body and judges should apply the law exactly as it is written. This will prevent unelected judges from making law.
  • Another advantage is that using the literal rule makes the law more certain as it is interpreted as it is written, this means it is easier for people to know exactly how the law will work and how it will be applied.
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Disadvantages of The Purposive Approach

  • The main disadvantage is that judge may simply refuse to follow the clear words of parliament and instead creates an objective element where judges have to potentially guess the purpose of parliament without fully knowing what they intended and so instead judges essentially make the law which contravenes he sovereignty of parliament and our democracy as a whole.
  • It can be very difficult to know exactly what parliaments intentions where if they are not in the statue, even using Hansard, the wording of the act may be different to what was discussed in parliament on purpose.
  • It also leads to uncertainty in the law just like in the mischief rule.
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Advantages of The Golden Rule

  • The golden rule respects the exact wording of parliament in most situations, its main advantage is that the problems faced by the literal rule involving various interpretation and miswording of acts are combated here by the 'escape route' the Golden Rule incorporates.
  • Another advantage is that it allows the judge to choose the most sensible meaning where there is more than one, this also means repugnant and potentially unjust rulings can be avoided by choosing a more sensible option for how words should be interpreted.
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Disadvantages of The Golden Rule

  • The main disadvantage is that it is quite limited in its use and it is impossible to predict where a court will use the rule weakening its effectiveness.
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Advantages of The Mischief Rule

  • The main advantage is that the rule promotes the purpose of the law as it allows judges to examine the gap in the law the act was intended to cover, the emphasis is on making sure the gap in the law is filled.
  • Another advantage is that it increases the likelihood a fair and just ruling will be passed as the courts will interpret the law the way parliament wanted it to work.
  • It is favoured by the Law Commission and has been recommended by them since 1969 as the only option to interpret statues.
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Disadvantages of The Mischief Rule

  • The main disadvantage is the potential risk of judicial law making as judges will fill the gaps with their own views on how the gap should be filled.
  • Use of the mischief rule can lead to uncertainty in the law, as it is almost impossible to tell when a judge will use the rule and what the outcome of its use will be, making it difficult for lawyers to advise their clients.
  • It is not as wide as the purposive approach and it is limited to looking at the gap in the law and cannot be used for a more general consideration of the purpose of the law.
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Advantages of the Purposive Approach

  • The main advantage is that it leads to justice in individual cases, it is a broad approach which allows the law to cover more situations than just applying words literally. 
  • The purposive approach is particularly useful where there is new technology which was not around when the law was created like in R v Secretary of State where embryo technology was questioned, if the literal rule had been used a new law would have had to been created.
  • It gives judges more discretion than just using the literal rule and allows them to avoid absurd outcomes.
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Disadvantages of The Purposive Approach

  • The main disadvantage is that judge may simply refuse to follow the clear words of parliament and instead creates an objective element where judges have to potentially guess the purpose of parliament without fully knowing what they intended and so instead judges essentially make the law which contravenes he sovereignty of parliament and our democracy as a whole.
  • It can be very difficult to know exactly what parliaments intentions where if they are not in the statue, even using Hansard, the wording of the act may be different to what was discussed in parliament on purpose.
  • It also leads to uncertainty in the law just like in the mischief rule.
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