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English Legal System and Law making - Paper 1 (Statutory Interpretation)
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- Created by: chloefyf3
- Created on: 21-06-22 18:47
What is the role of the judges?
they must find and declare the law
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How must the judges apply the statute to a case?
as written by parliament
2 of 120
What must judges determine about statutory provisions?
the correct meaning and application
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What do they use certain approaches and rules to do with the wording in question?
interpret
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What are five reasons as to why statutory interpretation is needed?
- ambiguity
- broad terms
- drafting errors
- new developments
- changes in language
- broad terms
- drafting errors
- new developments
- changes in language
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What are the four rules / approaches used for statutory interpretation?
- the literal rule
- the golden rule
- the mischief rule
- the purposive approach
- the golden rule
- the mischief rule
- the purposive approach
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What does the literal rule mean?
judges read the statute as a whole, putting the words into context
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In doing so, what are words given regardless of the outcome?
their plain, ordinary grammatical meaning
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Who spoke about the literal rule in the case of R v Judge of the City of London Court (1892)?
Lord Esher
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What did Lord Esher say in the case of
R v Judge of the City of London Court (1892)?
R v Judge of the City of London Court (1892)?
''if the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity (...) the court has nothing to do with the question of whether the legislature has committed an absurdity.''
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What are the two cases used in application of the literal rule?
Whiteley v Chappell
LNER v Berriman
LNER v Berriman
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What were the facts in Whiteley v Chappell?
- the Poor Law Amendment Act 1851 stated it was an offence to ''impersonate any person entitled to vote''
- the defendant cast a vote using the identity of a deceased person
- the defendant cast a vote using the identity of a deceased person
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What was held in Whiteley v Chappell?
- taken literally, a dead person is not entitled to vote
- therefore, the defendant could not be guilty of the offence
- this is an absurd outcome
- therefore, the defendant could not be guilty of the offence
- this is an absurd outcome
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What were the facts in LNER v Berriman?
- a railway worker was killed whilst oiling the track
- the fatal accidents act 1846 provided that compensation was payable on the death of a worker whilst ''relaying or repairing'' the track
- the fatal accidents act 1846 provided that compensation was payable on the death of a worker whilst ''relaying or repairing'' the track
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What was held in LNER v Berriman?
- taken literally, oiling the track is neither relaying nor repairing but rather maintaining it
- his widow was not entitled to compensation
- his widow was not entitled to compensation
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What are the three strengths of the literal rule?
- respects parliamentary sovereignty
- creates certainty
- agrees with the separation of powers
- creates certainty
- agrees with the separation of powers
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What are the four weaknesses of the literal rule?
- leads to absurd outcomes
- leads to unjust results
- assumes the act does not contain mistakes
- doesn't consider that words have more than one meaning
- leads to unjust results
- assumes the act does not contain mistakes
- doesn't consider that words have more than one meaning
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What does the golden rule state?
the literal rule should be followed unless it would lead to an absurd decision which parliament would not have intended
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What is the golden rule also known as?
the safety valve
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What is the golden rule a modification of?
the literal rule
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In what case was the golden rule thought to have it's origins of words in and who were the words of?
Becke v Smith (1836)
Parke B
Parke B
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What did Parke B say about the golden rule in Becke v Smith (1836)?
''... that the words of an act should be taken literally but they can be modified or varied to avoid inconsistency with the act or repugnant outcome.''
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Who spoke about the golden rule in the case of Grey v Pearson (1857)?
Lord Wensleydale
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What did Lord Wensleydale say about the golden rule in Grey v Pearson (1857)?
''the grammatical and ordinary sense of the world is said to be adhered to unless that would lead to some absurdity ... in which case the ... words may be modified, so as to avoid that absurdity...''
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What are the two approaches as to how far the golden rule should be used?
the narrow view
the wide view
the wide view
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What does the narrow view mean with a case example?
where a word / words have two possible meanings but one would produce an unwanted / absurd outcome, the court may choose between them
Jones v DPP
Jones v DPP
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What is another case that can be used when applying the narrow view of the golden rule?
R v Allen
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What were the facts in R v Allen?
- defendant was already married when he married again
- offence to 'marry again' unless you were divorced / widowed
- court had to consider meaning of 'marry'
- if 'marry again' was interpreted as 'get legally married again' the offence could never be com
- offence to 'marry again' unless you were divorced / widowed
- court had to consider meaning of 'marry'
- if 'marry again' was interpreted as 'get legally married again' the offence could never be com
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What was held in R v Allen?
using the golden rule, the meanings of the words 'marry again' was modified to mean 'going through the ceremony'
as a result, Allen (defendant) was found guilty based on this meaning
as a result, Allen (defendant) was found guilty based on this meaning
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What does the wide view mean?
where the words have only clear meaning but their literal meaning would lead to a repugnant situation, the court use the golden rule to change the words of the statute in order to avoid this problem
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What is a case that can be used when applying the wide view of the golden rule?
Re Sigsworth
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What were the facts in Re Sigsworth?
- Sigsworth had killed his mother
- the Administration of Estates Act 1925 stated the order of relatives that could inherit property where there was no will
- Sigsworth was the only surviving son of the deceased (his mum) and so stood to inherit
- the Administration of Estates Act 1925 stated the order of relatives that could inherit property where there was no will
- Sigsworth was the only surviving son of the deceased (his mum) and so stood to inherit
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What was held in Re Sigsworth?
the court changed the words of the statute so that those who have killed may not inherit from them
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What are the three strengths of the golden rule?
- avoids absurdity and unjust results
- ensures justice and fairness is achieved
- respects exact words of parliament
- ensures justice and fairness is achieved
- respects exact words of parliament
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What are the four weaknesses of the golden rule?
- no clear definition of absurd result
- judges can rewrite statutes and therefore have a lot of power
- very limited in use
- described as a feeble parachute
- judges can rewrite statutes and therefore have a lot of power
- very limited in use
- described as a feeble parachute
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What do the court look at under the mischief rule and why does it interpret the act?
the gap in the law that parliament had felt it necessary to fill by passing the act
to fill the gap and to remedy the mischief that parliament had been aiming to remedy
to fill the gap and to remedy the mischief that parliament had been aiming to remedy
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In what case is the mischief rule also known as the rule in?
Heydon's case (1584)
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What are the four things Heydon's case (1584) states the court must consider when attempting to fill this gap?
1 - what was the common law before the making of the act
2 - what was the mischief and defect for which the common law did not provide
3 - what was the remedy that parliament resolved
4 - the true reason for that remedy
2 - what was the mischief and defect for which the common law did not provide
3 - what was the remedy that parliament resolved
4 - the true reason for that remedy
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What are two cases used for application of the mischief rule?
Smith v Hughes
Royal College of Nursing v DHSS
Royal College of Nursing v DHSS
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What were the facts in Smith v Hughes?
- some prostitutes had been waving from windows / balconies of a flat to attract attention of men on the street below
- they were charged with soliciting in a 'public place' under the street offences act 1959
- women claimed that they were in private prem
- they were charged with soliciting in a 'public place' under the street offences act 1959
- women claimed that they were in private prem
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What was held in Smith v Hughes?
- parliament's intention in 1959 had been to resolve the problem of people being pestered as they walked in the streets
- although not actually IN the street, the prostitutes could be seen FROM the street so they were guilty of the offence
- although not actually IN the street, the prostitutes could be seen FROM the street so they were guilty of the offence
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What were the facts in Royal College of Nursing v DHSS?
- the abortion act 1967 enabled 'registered medical practitioners' to carry out legal terminations
- by the 1980's medical advances meant that part of this procedure could be carried out by nurses giving drugs prescribed by doctors
- by the 1980's medical advances meant that part of this procedure could be carried out by nurses giving drugs prescribed by doctors
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What was held in Royal College of Nursing v DHSS?
- the court decided that the mischief parliament was seeking to fix in 1967 was backstreet abortions
- it held that nurses were not contributing to this mischief so they were allowed to give the drug
- it held that nurses were not contributing to this mischief so they were allowed to give the drug
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What are the three strengths of the mischief rule?
- gives effect to parliament's intentions
- judges can use their common sense and this saves parliament's time
- judges consider both social and technological changes
- judges can use their common sense and this saves parliament's time
- judges consider both social and technological changes
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What are the four weaknesses of the mischief rule?
- finding intention is difficult
- undemocratic
- out of date so doesn't reflect modern needs
- could cause uncertainty as judges are able to change the law
- undemocratic
- out of date so doesn't reflect modern needs
- could cause uncertainty as judges are able to change the law
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What rule is the purposive approach an extension of?
the mischief rule
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What is the other role of the court under the purposive approach than looking to see what the gap was in the old law?
making a decision as to what they felt parliament meant to achieve
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What does the purposive approach allow judges to look at and thus enable them to do?
to look at the aims of the act in the current social context
thus enables them to develop the law to meet parliament's intentions as perceived today
thus enables them to develop the law to meet parliament's intentions as perceived today
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Who spoke about the purposive approach in the case of ''Magor and St Mellons v Newport Corporation (1950)''?
lord denning
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What did Lord Denning say about the purposive approach in the case of ''Magor and St Mellons v Newport Corporation (1950)''?
''we sit here to find out the intention of parliament and of ministers 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''
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What are the two cases used in application of the purposive approach?
Jones v Tower Boot Co
R v Registrar General - Ex parte smith (1990)
R v Registrar General - Ex parte smith (1990)
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What are the facts in Jones v Tower Boot Co?
- young black worker sued his employer for compensation under s.32 Race Relations Act 1976 for physical and verbal abuse by his colleagues
- under vicarious liability, d could only be responsible for their behaviour if it was in the course of their employ
- under vicarious liability, d could only be responsible for their behaviour if it was in the course of their employ
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What was held in Jones v Tower Boot Co?
- court decided not to be restricted by those terms and instead to adopt a broad interpretation :
as the act's purpose was to remove discrimination at the workplace, the employer should be held responsible as they alone could establish an environment of
as the act's purpose was to remove discrimination at the workplace, the employer should be held responsible as they alone could establish an environment of
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What are the facts in R v Registrar General - Ex parte smith (1990)?
- smith (criminally insane and went on to kill twice) had been adopted as a baby
- there is a clear and absolute to birth records provided by Adoption Act 1976
- however, the court denied him access to his on the grounds of public policy :
if he found hi
- there is a clear and absolute to birth records provided by Adoption Act 1976
- however, the court denied him access to his on the grounds of public policy :
if he found hi
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What was held in R v Registrar General - Ex parte smith (1990)?
- positive purpose of the act was to create closer family relationships
- parliament could not possibly have intended to put the natural mother at risk
- parliament could not possibly have intended to put the natural mother at risk
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What are the three strengths of the purposive approach?
- judges can interpret EU law
- abides by intentions of parliament
- supported by Lord Denning
- abides by intentions of parliament
- supported by Lord Denning
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What are the three weaknesses of the purposive approach?
- non elected judges get too much power
- decisions on public policy should stay at parliament
- can make law uncertain (conflicts with the rule of law)
- decisions on public policy should stay at parliament
- can make law uncertain (conflicts with the rule of law)
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What does the European Court of Justice adjudicate on?
- legal disputes between European Union (EU) countries and their citizens
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When did the UK first become a member of the EU?
1973
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What is the European Court of Justice established, in theory, on?
civil law principles
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How does civil law differ from our common law system?
it is a written code which sets out the general principles from which judges must reason
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What is common law?
law that was not written down but developed instead from local customs and judicial decisions
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What approach of statutory interpretation have European Courts adopted?
purposive approach
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What does the law in Europe have to set out allowing European courts to adopt the purposive approach?
the general aims or purpose to be achieved
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What can judges not do with the principles in these decisions?
set them aside
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Is the European Court of Justice bound by the operation of the doctrine of stare decisis?
no
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When does the European Court of Justice make reference to it's previous decisions?
when ruling in an individual case on an individual basis
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What is the reason the European Court of Justice refer back to it's previous decisions?
consistency rather than an obligation
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Under the civil law system, what do judicial decisions not do?
make law / set precedent
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What judges are required to apply the purposive approach whenever applying a piece of EU law?
domestic judges
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What must laws be to be compatible with EU LAW and in the same way as what else?
read and applied in the same way that they must be read to be compatible with human rights
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If UK law and EU law conflict, how must UK law be interpreted?
in such a way that the European ruling is applied
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What does this then challenge the notion of and why?
parliamentary sovereignty
appears to suggest that parliament's intention can be subordinated to the EU's (parliament is not necessarily supreme)
appears to suggest that parliament's intention can be subordinated to the EU's (parliament is not necessarily supreme)
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Who spoke about the role of the judge in considering European law when applying a statute and in which case?
Lord Denning
in
Bulmer v Bollinger
in
Bulmer v Bollinger
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What did Lord Denning
say about the role of the judge in considering European law when applying a statute and in the case of Bulmer v Bollinger?
say about the role of the judge in considering European law when applying a statute and in the case of Bulmer v Bollinger?
''... when we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in
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Where is the European Convention on Human Countries applied across?
numerous countries
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What approach must domestic judges adopt when considering human rights issues and why?
purposive approach
due to the ambiguities of translation
due to the ambiguities of translation
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Judges must also use the purposive approach when considering issues concerning another act relevant to human rights. What act is this?
Human Rights Act 1998
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What has the Human Rights Act 1998 brought modifications up about?
the interpretation of English law
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When did the Human Rights Act 1998 come into force?
2000
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Which section of the Human Rights Act 1998 speaks about the impact of human rights on statutory interpretation?
s3(1)
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What did s3(1) of the Human Rights Act 1998 say about statutory interpretation?
'so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (...) whenever enacted'
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What court must domestic courts follow decisions from?
the European Court of Human Rights
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What case is used when applying the impact of human rights on statutory interpretation?
Mendoza v Ghaidan
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Which article of the Human Rights Act 1998 is used in Mendoza v Ghaidan and what does this article prohibit?
article 14
prohibits discrimination on the grounds of gender, race, religion and sexual orientation
prohibits discrimination on the grounds of gender, race, religion and sexual orientation
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What does Article 14 of the Human Rights Act 1998 mean about the interpretation of English law in Mendoza v Ghaidan?
English law had to be interpreted in a way that respected the rights of same sex couples with respect to property equally with those of heterosexual couples
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What are the two aids to interpretation judges may refer to when constructing an act's meaning?
intrinsic aids
&
extrinsic aids
&
extrinsic aids
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What is an intrinsic aid?
inside the statute and may help judge to understand the meaning of an act
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What are the three parts to an intrinsic aid?
preamble
explanatory notes
schedules
explanatory notes
schedules
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What is a preamble?
an introduction in an older act which sets out the meaning and purpose of the act
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What is an example of an act that contains a preamble and what is the preamble?
the Theft Act 1968
purpose of the act is 'to modernise the law on theft, bringing together similar and associated offences into one new act'
purpose of the act is 'to modernise the law on theft, bringing together similar and associated offences into one new act'
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What are explanatory notes?
elaborate on the meanings of words used in the act
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Why have the use of preambles declined and since when?
as all acts are accompanied by explanatory notes
since 1999
since 1999
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What act is an example of the use of explanatory notes and what did they set out?
the Climate Change & Sustainable Energy Act 2006
set out very specifically the purpose of the act and identify how and by whom they are to be achieved
set out very specifically the purpose of the act and identify how and by whom they are to be achieved
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What are schedules?
additions to the act (like an appendix) often referred to in the main provisions of the act, to clarify those provisions
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What act (include section) has schedules and what do they state?
s2 Hunting Act 2004
states that hunting is exempt if it is part of a class specified in schedule 1
states that hunting is exempt if it is part of a class specified in schedule 1
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What is an extrinsic aid?
when they judge may make reference to materials outside the act in question
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What are the two parts to an extrinsic aid?
hansard
oxford english dictionary
oxford english dictionary
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What is a hansard?
the official record of parliamentary debates
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What case ruling is used in application of hansards and what does it permit judges to do?
Pepper v Hart (1993)
permits judges to refer to a debate but only where the words of the act are ambiguous, unclear or absurd
permits judges to refer to a debate but only where the words of the act are ambiguous, unclear or absurd
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Who makes the clear statements that are recorded and relied upon in hansard?
made by minister or sponsor of the bill
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What might these comments clarify?
parliament's intention in legislating and therefore the meaning of the words in context
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What is the use of the oxford english dictionary?
same dictionary used by all judges to ensure consistency
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Why would the judge need to use a dictionary published in the same year the act was passed?
to find the 'plain, ordinary, natural' meaning of words as they were then used
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What is an act for application of the use of the oxford english dictionary?
Vaughan v Vaughan
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What were the facts in Vaughan v Vaughan?
- defendant had been charged with 'molesting' his estranged wife, having pestered her by turning up at her home and work
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What was held in Vaughan v Vaughan?
- the dictionary from the year of the act defined 'molest' as 'to cause trouble, vex, annoy or inconvenience'
- it did not specify a sexual connotation
- therefore, the defendant had molested his wife
- it did not specify a sexual connotation
- therefore, the defendant had molested his wife
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What are the three rules of language?
1 - ejusdem generis = the general rule
2 - expressio unius est exclusio alterius = the specific rule
3 - noscitur a sociis = the context rule
(a word is known by the company it keeps)
2 - expressio unius est exclusio alterius = the specific rule
3 - noscitur a sociis = the context rule
(a word is known by the company it keeps)
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What is the general rule (ejusdem generis)?
- ejusdem generis means 'of the same kind'
- where a list of specific words is followed by the phrase 'and any others', the general term 'any others' will be interpreted to include only examples 'of the same kind' as those already in the list
- where a list of specific words is followed by the phrase 'and any others', the general term 'any others' will be interpreted to include only examples 'of the same kind' as those already in the list
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What is a case used in application of the general rule (ejusdem generis)?
Powell v Kempton Park Racecourse
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What were the facts in the case of Powell v Kempton Park Racecourse?
- it was illegal to take bets in a 'house, office, room or other place'
- defendant was taking bets in an open air enclosure
- using the general rule, 'other place' would have to be similar to a house, office or room i.e covered place (roof etc)
- defendant was taking bets in an open air enclosure
- using the general rule, 'other place' would have to be similar to a house, office or room i.e covered place (roof etc)
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What was held in the case of Powell v Kempton Park Racecourse?
the defendant was in a place open to the air: it was not covered and the defendant was not liable
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What is the specific rule (expressio unius est exclusio alterius)?
-the express mention of one thing excludes others
- where the wording of statute involves a 'closed' list of specifics, and does not include 'any other' or 'similar' then only the items on the list are covered
- where the wording of statute involves a 'closed' list of specifics, and does not include 'any other' or 'similar' then only the items on the list are covered
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What is a case used in application of the specific rule (expressio unius est exclusio alterius)?
Inhabitants of Sedgley
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What were the facts in the case of Inhabitants of Sedgley?
- the law stated that rates were to be charged on 'land, titles and coal mines'
- the judge had to decide whether the inhabitants of Sedgley should pay rates, as they operated tin mines
- the judge had to decide whether the inhabitants of Sedgley should pay rates, as they operated tin mines
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What was held in the case of Inhabitants of Sedgley?
- the list was specific and referred only to coal mines
- tin mines are not coal mines
- therefore, the inhabitants were not liable to pay the charge
- tin mines are not coal mines
- therefore, the inhabitants were not liable to pay the charge
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What is the context rule (noscitur a sociis)?
if a word is unclear or ambiguous, the judge should construct its meaning from its context i.e by looking at the surrounding words
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What is a case used in application of the context rule (noscitur a sociis)?
Muir v Keay
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What were the facts in the case of Muir v Keay?
- the law stated that houses 'for public refreshment, resort and entertainment' required a licence
- the defendant kept his cafe open at night without a licence, and argued that he did not need one, as he was not providing live music
- the defendant kept his cafe open at night without a licence, and argued that he did not need one, as he was not providing live music
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What was held in the case of Muir v Keay?
- the word 'entertainment' in the context of the wording, could be taken as meaning 'enjoyment'
- therefore drinking coffee in a cafe clearly was 'entertainment'
- the defendant's cafe did require a licence
- therefore drinking coffee in a cafe clearly was 'entertainment'
- the defendant's cafe did require a licence
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Other cards in this set
Card 2
Front
How must the judges apply the statute to a case?
Back
as written by parliament
Card 3
Front
What must judges determine about statutory provisions?
Back
Card 4
Front
What do they use certain approaches and rules to do with the wording in question?
Back
Card 5
Front
What are five reasons as to why statutory interpretation is needed?
Back
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