Statutory Interpretation

Literal Rule  Advantages + Disadvantages

Golden Rule Advantages + Disadvantages

Mischief Rule Advantages + Disadvantages

Purposive Approach Advantages + Disadvantages

Intrinsic + Extrinsic Aids 

Rules of language

Presumptions

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  • Created on: 08-01-12 20:40

Literal Rule

Gives words there plain, ordinary, grammatical meaning.

Use dictionary from the same time as the act was created to interpret words.

Lord Esher - R v Judges of the city of london (1892) As long as words are clear enough to understand then literal rule must be used even if it leads to absurdity.

Developed in the nineteenth century. Starting point for interpreting all legislation.

Whiteley v Chappel - impersonating dead person absurd outcome.

LNER v Berriman - Harsh outcome.

Respects Parliamentary Supremacy - Judges only stick to Parliaments words - respec parliament as supreme law making body.

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Literal Rule Advantages + Disadvantages

Advantages - Leaves law making to parliament - follows parliaments exact words

- unelected judges don't make the law

- makes it easier for people to know th elaw and how judges will apply it

- Respects parliamentary supremacy

Disadvantages - Literal rule assumes every act will be perfectly drafted

- not always possible to word an act so that it covers every possible situation Parliament intended. 

- words have more than one meaning - act is unclear

- can lead to unfair unjust decisions

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Golden rule

Modification of the literal rule

Only used if literal rule has an absurd/ repugnant outcome

2 approaches to the golden rule:

Narrow approach - chooses between the best of 2 alternative outcomes R v Allen

Broad approach - modifies the outcome to avoid an unjust/ absurd outcome Re sigsworth

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Golden rule Advantages + disadvantages

Advantages - Flexible compared to literal rule, can prevent the problems of the literal rule.

Allows judges to achieve an outcome Parliament intended.

Allows freedom to move away from absurd + harsh outcome.

Respects Parliamentary supremacy doesnt give judges complete freedom - Narrow approach.

Disadvantages - Absurdity may mean different things to different judges. May interpret words differently. 

Using broad approach the golden rule is departing away from parliamentary supremacy. 

Rule allows judges flexibility/ uncertainty - gives judges too much discretion

Zander criticised golden rule - 'an unpredictable safety valve' never know when it will be used

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Mischief rule

Oldest of all rules comes from Heydons case (1584) which outlined a 4 point procedure:

- What was the common law before the passing of an Act

- What was the 'mischief'/ gap in the previous law

- Identify the way in which Parliament proposed to remedy the mischief

- Reason for the remedy 

Judges use the rule to identify the mischief parliament intended to prevent - court then interpret the act to cover the gap/mischief

Mischief rule similar to the purposive approach - both look to cover the gaps/intentions of parliament.

Smith v Hughes (1960) Dpp v Bull (1994)

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Mischief Rule - Advantages + disadvantages

Advantages - Judges have greater flexibility - not looking at literal meaning, looking at parliaments intentions.

Law commission views - Only rule judges should use.

Helps achieve parliaments intentions.

More likely to produce a 'just' result, removing absurdity and injustice.

Disadvantages - Judges rely on intrinsic aids to discover Parliaments intentions - Aids are time consuming + expensive

Limited due to purposive approach - can't beused for general consideration of the purpose of the law.

Risk of judicial law making - too much power for judges allowing them to come up with gaps themselves.

Modern acts don;'t contain preamble - can't rely on it.

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Purposive approach

Goes beyond the mischief rule - not just looking for the gap in the old law but looking for Parliaments intentions. 

Judges are required to consider the context in which the law was created - concerns of government and parliament at the time the act was created.

Relies on extrinsic aids

Favoured by most judges, used in European Court of Judges and EU laws

Fitzpatrick v Sterling Housing Association (1999)

R v Registrar General ex Parte Smith (1990)

St Mellons v Newport Corporation (1950)

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Purposive approach Advantages + Disadvantages

Advantages - Leads to justice in individual cases

- allows law to cover more situations 

- fills gaps in law

- useful where there is new technology 

Disadvantages - Makes law less certain

- allows unelected judges to make law

-difficult to discover the intention of parliament

- impossible to know when judges will use this approach 

- difficult for lawyers to advise clients

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Aids to interpretation - Intrinsic

Intrinsic - Found within the statute 

Title (long/short) - Long one provides clues to meaning of words within the act. Example; access to justice Act 1999

The preamble - An intro to the act that may provide an indication of its purpose.

Headings - These summarise the effect of sections of the act

Schedules - Extra details, which elaborate on the main section of an act.

Interpretation Sections - Set out lists, sometimes quite long ones, of what meanings are intended for certain words used elsewhere in the act.

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Aids to interpretation - Extrinsic

Extrinsic - Things found outside the statute 

Dictionary - Oxford english dictionary - Cheeseman v Dpp (1990)

Law commission Reports - Law commission often produce a report before a law is introduced. Report can be used to discover what 'mishcief' or problem parliament may have intended to prevent when creating a statute.

Hansard - Official report of what is said in parliament when an act was debated. Until 1992 there was a firm rule that the courts could not look at what was said in the debates in parliament. Before 1992 Lord denning tried to attack this ban on hansard in davis v johnson. This ban on hansard was lifted in pepper v Hart (1993) House of Lords accepted Hansard could be used in limited way : Words of the act are ambiguous/obsecure/lead to absurdity; clear statement by minister introducing the legislation which would resolve absurdity/ambiguity;Court is considering an act introduced international convention/European directive into English Law.

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Rules of Language

Ejusdem generis - General words following a list are interpreted in the context of that list Powell v Kempton park race course (1899)

Expressio unius exclusio alterius - (expression of one excludes others) where there is a list of words which is not followed by general words then the act will only apply to the items in the list. (Inhabitants of Sedgley (1837)

Noscitur a sociis - Word is known by the company it keeps. Words must be read in context, derive meaning from other words surrounding them. 

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Presumptions

Before beginning any kind of interpretation a judge starts with presumptions :-

That common law has not changed; common law will apply unless parliament has made it clear in an Act of Parliament that common law has been altered (Leach v R(1912)

That 'mens rea' is required in criminal cases. Basic presumption that no one can be convicted of a crime without relevant mens rea (guilty mind).

That parliament has not changed the law retrospectively. Theerfore each Act of Parliament only applies from the date it came into effect.

If a statute clearly states the opposite of one of these presumptions, then presumption will not apply.

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