Why do Statutes need to be interpretated?
The process of statutory interpretation is used by judges in the court when there is a dispute or some uncertainty over the meaning of a word of phrase within an act of legislation or a piece of delegated legislation. The necessity for statutory interpretation are as follows:
- The English language may be very complex leading to unclear meanings when a word is ambiguous.
- The meaning of words changes over time.
- The legislation may have been drawn up quickly in the response to an emergency therefore the wording may not be as precise as intended. (e.g.use of a broad term) Example: Dangerous Dogs Act 1991.
- The meaning and intent outcome of an act may become unclear if it has been amended many times.
- The amount of delegated legislation is increasing.
The Literal Rule
The Literal Rule means giving the words their plain, ordinary, dictionary meaning - no matter how unfortunate the consequences may be.
The rule was used in the case of Whiteley v Chappell (1868) - the defendant was charged with impersonating a fellow voter even though the person who was impersonated was deceased.
Another example of where the approach was used is in the case of Fisher v Bell (1961).
The Rule has also led to unfair and unjust decisions, for instance in the case of London and the North Eastern Railway Co. v Berriman (1946).
Advantages of the Literal Rule
- The rule respects the sovereignty of parliament and prevents unelected judges from making law.
- People know where they stand as the wording does not change.
- Using this approach often leads to a quick and fast decision as the answer can be found using an extrinsic aid such as a dictionary. (This only counts if the word has a clear meaning and is not ambiguous).
Disadvantages of the Literal Rule
- Its use can lead to unfair or unjust decisions, as for example in London and North Eastern Railway Co. v Berriman (1946).
- It can also lead to absurd decisions that were clearly not what parliament intended, as for example Whiteley v Chappell (1868)
- Words may have more than one meaning (ambiguous) making it difficult to apply a dictionary meaning.
- It is not possible to word an act to cover every situation; circumstances that were not anticipated by parliament may occur.
- The literal rule gives judges little discretion to adapt the law to modern times.
The Golden Rule
This approach is a modification upon the literal rule that states that "judges should use the literal rule unless it would produce an absurd outcome". There are two views on how the rule should be used: the narrow application and the wider application.
Under the narrow application, if a word is ambiguous the judge may choose between possible meanings of the word in order to avoid an absurd outcome. This application was used within the case of R v Allen (1872) - the court decided the word marry to be ambiguous and the judge chose the meaning that allowed the defendant to be prosecuted.
The wider application is where there is only one meaning but this would lead to an absurd situation. This application was used in the case of Re Sigsworth (1935) - The wording of the act was unambiguous however the court did not want to see the defendant benefit from him murdering his mother and gaining her inheritance.
Advantages of the Golden Rule
- The courts can alter the wording and make sense of absurd wording. Re Sigsworth (1935) concerned just a situation.
- The Golden Rule respects the authority of parliament because in all other circumstances the literal rule should be used.
Disadvantages of the Golden Rule
- Michael Zander argues that it is a "feeble parachute" as it allows judges to change the word meaning only when the outcome would be absurd therefore it can only be used in limited circumstances.
- There are no real guidelines on how it should be applied and some judges view on an absurd outcome may differ to another.
- The law commission stated that: "the rule is of limited value and provides no clear means to test the existence of the characteristics of absurdity, inconsistency or inconvenience, or to measure their quality or extent".
The Mischief Rule
Judges should consider four factors when using this rule:
- What was the common law before the act was passed?
- What was the mischief that the act was designed to remedy?
- What was the remedy that Parliament was trying to provide?
- What was the reason for the remedy?
Judges should look for the "mischief" the act was designed to remedy and interpret the act in such a way that the remedy is achieved. As an example this rule was used in the case of Smith v Hughes (1960) where "soliciting in the street" also counted "soliciting from the window of a house". Another example would be Royal College of Nursing v DHSS (1981) and Elliot v Grey (1959).
There are limitations, and it can only be used where:
- The mischief could be seen clearly from the act.
- It was apparent that parliament had overlooked the problem.
- Additional words required could be stated with a high degree of certainty.
Advantages of the Mischief Rule
- The mischief rule tries to give effect to the true intention of parliament and so is regarded as the best of the three rules of statutory interpretation.
- It allows judges to "fill in the gaps" when parliament has left something out, and to use common sense and change wording in accordance with the problem that the act was trying to deal with.
- It allows judges to interpret statutes in the light of changing social, economic and technological circumstances. For example: the decisions of the house of lords in the case of Royal College of Nursing v DHSS (1981).
- It allows the court to look at Hansard, so that the words of the minister bringing the bill before parliament can be considered.
Disadvantages of the Mischief Rule
- Finding the intention of parliament is not always easy, even when using and referring to Hansard.
- The mischief rule could lead to confusion because judges could change the meaning of what an act says. For example Stock v Frank Jones (Tipton) Ltd (1978).
- It could be argued that this approach gives too much power to judges.
The Purposive Approach
This approach requires the court to examine the object of the Act and to construe doubtful passage in accordance with that purpose. The European Court of Justice uses this approach when interpreting EU law, and the English courts have to use the same approach when interpreting domestic legislation that has been brought in as a result of this. For example the Human Rights Act 1998 is also likely to cause a shift towards the purposive approach.
An example of its use is in the case of Jones v Tower Boot Co. (1997), where the Court of Appeal decided that racial harassment by fellow workers made the employer liable.
Another example is Coltman v Bibby Tankers (1987), where the House of Lords had to decided whether a sunken ship could be considered as equipment.
Advantages of the Purposive Approach
- It fits in and complies with what is done in Europe.
- It seems more sensible to look at the whole purpose of the act rather than just at the evil it was designed to put right.
- This approach is wider than the other rules and allows judges to look at all the circumstances and consider the full range of evidence to find out what parliament intended.
- Lord Denning and the Law Commission favour this approach.
Disadvantages of the Purposive Approach
- Some have argued that the purposive approach also gives too much power to judges.
- Finding the intention of Parliament is not easy, even if Hansard is used. For example the case of R v Deegan (1998) an application to consider Hansard was rejected because what ministers had said was not sufficiently clear.
- Using the purposive approach could lead to confusion because judges could change the meaning of what an act says.
Internal or Intrinsic Aids to Interpretation
These are found in the act itself and may help to make the meaning clear.
- The long and short title of the Act.
- The Preamble, older acts normally have a preamble outlining what the statute covered and its purpose.
- Marginal notes and headings. Both may provide guidance. For example a marginal note was used in R v Tivnan(1999) in order to clarify.
- The interpretation section. Most acts now contain an interpretation section, for example in the Theft Act 1968 adds definition to the purpose of the Act.
- Schedules. Found at the end of an Act and include more detailed clarification. Example: Unfair Contract Terms Act 1977.
External or Extrinsic Aids to Interpretation
These are found outside the Act and include the following:
- Dictionaries of various kinds. Example in Vaughan v Vaughan (1973) the court used a dictionary to define the meaning of "molest".
- Previous Acts of Parliament and earlier case law.
- Reference to Hansard. Hansard is the official report of proceedings in Parliament. The use of Hansard is restricted to cases where the words of an act are ambiguous, obscure or lead to an absurdity and only where there is a clear statement by the minister introducing the legislation (found within Hansard) that would resolved the doubt.
- Law reform reports from bodies such as the Law Commission.
- International Treaties. Example, in the case of Fothergill v Monarch Airlines Ltd (1980) used a French Act to come to a clear unambiguous outcome.
- Explanatory Notes. Since 1999 all government bills are accompanied by explanatory notes, which provide guidance on complex parts of the bill.
Rules of Language: Ejusdem Generis
Means that in a list, general words that follow specific words are limited to the type as the specific ones.
For example if the act uses the phrase: "dogs, cats and other animals" - the other animals would include other domestic animals but not wild animals.
The rule was applied in Powell v Kempton Park Racecourse (1899) which states that "house, office, room or other place for betting" did not include any area outside.
Rules of Language: Expressio Unius est Exclusio Al
This means that express mention of one thing implies to the exclusion of another.
For example if an act specifically refers to one specific breed of dog (e.g. Labrador) then it would not include other breeds of dog.
An example of where this was used is in Tempest and Kilner (1846) where a section included the words "goods, wares and merchandise" therefore could not apply to stocks and shares.
Rules of Language: Noscitur a Sociis
This means that a word draws meaning from other words around it.
Where an act deals with houses for "public refreshment, resort and entertainment" the last word is held not to cover theatrical/musical entertainment, but to refer to refreshment rooms and the reception and accommodation of the public.
An example is in the case of: Inland Revenue Commissioners v Frere (1965).