CLR Statutory Interpretation

8/3/2019 CLR Statutory Interpretation

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CLR Statutory Interpretation


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F.A.R. Bennion (Statute Law, 1990), has

identified a number of factors that may causedoubt:

1. The draftsman may refrain from using

certain words that he or she regards as

necessarily implied. The problem here is that

the users may not realise that this is the case.

2. The draftsman may use a broad term (a

word or phrase of wide meaning) and leave itto the user to judge what situations fall within

it.


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Bennion contd

3.Ambiguous words may be used.

4. There may be unforeseeable developments.

5. There are many ways in which the wording

may be inadequate. There may be a printingerror, a drafting error or another error.


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Solutions

General methods of statutory interpretation

have been

developed by the judges. The Interpretation Act 1978 only provides

certain standard definitions of common

provisions, eg, he includes she, and

thereby enables statutes to be drafted more

briefly than otherwise would be the case.


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Solutions

Modern statutes commonly include

definition sections in which the meaning of

words and phrases found in the statute are

explained, eg ss2-6 of the Theft Act 1968

explain the elements of the offence in s1.

Explanatory Notes have been published for

new Acts since 1999.


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6

The Rules of Interpretation

The Literal Rule- i.e. take only the plain, literal meaning of the words

used because those are the words the draftsman chose to employ.

The Golden Rule- i.e. to try to ascertain what the draftsmen intended by

these words by looking at the general purpose of the section and the

social, economic or political context; and The Mischief Rule- which directs you to look at the history of the Act or

other document to see what is wrong with the law (i.e. what is the

mischief? that the draftsman sought to remedy.

The Purposive Rule teleological approach as favoured by the judges of

the civil jurisdictions.

In reality, these rules are nothing more than techniques of reading a

document, and may be used singularly or in any combination.


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By the literal rule, words in a statute must be

given their plain, ordinary or literal meaning.

The objective of the court is to discover the

intention of Parliament as expressed in the

words used. This approach will be used even if

it produces absurdity or hardship, in which

case the remedy is for Parliament to pass anamending statute.

The Literal Rule


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One of the leading statements of the literal rulewas made by Tindal CJ in the Sussex Peerage Case

(1844) 11 Cl&Fin 85:

the only rule for the construction ofActs ofParliament is, that they should be construedaccording to the intent of the Parliament whichpassed the Act. If the words of the statute are inthemselves precise and unambiguous, then nomore can be necessary than to expound thosewords in their natural and ordinary sense. The

words themselves alone do, in such case, bestdeclare the intention of the lawgiver.


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Lord Esher in R v Judge of the City of London

Court [1892] 1 QB 273 said:

If the words of an Act are clear then you

must follow them even though they lead to a

manifest absurdity. The court has nothing to

do with the question whether the legislature

has committed an absurdity.


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Whiteley v Chappell (1868) LR 4 QB 147.

The defendant pretended to be someone who

had recently died in order to use that persons

vote. It was an offence to personate any

person entitled to vote.As dead people

cannot vote, the defendant was held not to

have committed an offence.


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London & North Eastern Railway v

Berriman [1946] AC 278.

The claimants husband was killed while oiling

points along a railway line.

Compensation wasonly payable if he had been relaying or

repairing the line. The HL held oiling points

was maintaining the line and not relaying or

repairing.


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Cutter v Eagle Star Insurance [1998] 4 All ER 417.

The claimant was sitting in his friends car in a car

park and was injured when a can of lighter fuel

exploded. The driver was insured, as required by

the Road Traffic Act 1988, for injury caused while

on a road.

The HL held that the car park wasnot a road because a road provides for cars to

move along it to a destination. Therefore, the

insurance company was not liable to pay out on

the drivers policy because the claimant had notbeen injured due to the use of the car on a

road.


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Pros of Literal Interpretation

encourages draftsmen to be precise.

respects the words used by Parliament.

prevents judges rewriting statute law, whichonly Parliament can do.

Alternative approaches would make it difficult

to predict how doubtful provisions might berewritten by judges.


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Judges have tended excessively to emphasise

the literal meaning of statutory provisions

without giving due weight to their meaning inwider contexts.

assumes that parliamentary draftsmen are

perfect.

ignores the limitations of language.

can lead to absurd or harsh decisions and

Parliament has to pass an amending statute.

Cons of Literal Interpretation


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R v Allen (1872) LR 1 CCR 367

The defendant was married and marriedagain. It was an offence for a married personto marry again unless they were widowed or

divorced. When caught the defendant arguedthat he did not commit this offence as the lawregarded his second marriage as invalid. Thecourt held that the word marry could also

mean a person who goes through aceremony of marriage and so the defendantwas guilty.


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Re Sigsworth [1935] Ch 89.

The defendant had murdered his mother. She

did not have a will and he stood to inherit her

estate as next of kin, by being her issue. The

court applied the golden rule and held that

issue would not be entitled to inherit where

they had killed the deceased.


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Adler v George [1964] 2 QB 7.

It was an offence to obstruct HM Forces in

the vicinity of a prohibited place. The

defendants had obstructed HM Forces in a

prohibited place (an army base) and argued

that they were not liable. The court found

them guilty as in the vicinity of meant near

or in the place.


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Pros of the Golden Rule

allows judges to avoid absurd or harsh resultswhich would be produced by a literal reading.

allows judges to avoid repugnant situations, as

in Re Sigsworth.

Cons of the Golden Rule There is no clear way to test the existence of

absurdity, inconsistency or inconvenience, orto measure their quality or extent.

Judges can rewrite statute law, which only

Parliament is allowed to do.


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The Mischief Rule

The mischief rule is contained in Heydon's

Case (1584) 3 Co Rep 7, and allows the court

to look at the state of the former law in order

to discover the mischief in it which the

present statute was designed to remedy. The

court stated that for the true interpretation of

all statutes four things are to be considered:


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1st. What was the common law before the

making of the Act.

2nd. What was the mischief and defect for

which the common law did not provide.

3rd. What remedy Parliament resolved and

appointed to cure the disease.

4th. The true reason of the remedy; and then

the function of the judge is to make such

construction as shall suppress the mischiefand advance the remedy.


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Smith v Hughes (1960) 2 All ER 859.

Six women had been charged with solicitingin a street or public place for the purpose of

prostitution. However, one woman had been

on a balcony and others behind the windows

of ground floor rooms. The court held they

were guilty because the mischief aimed at was

people being molested or solicited by

prostitutes.


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Royal College of Nursing v DHSS [1981] 1 All ER

545. The Abortion Act 1967 allows abortions by a

registered medical practitioner. Doctorscarried out the first part of the procedure and

the second was performed by nurses butwithout a doctor being present. The HL held(by 3-2) that this procedure was lawfulbecause the mischief Parliament was trying toremedy was back street abortions performedby unqualified people.


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Corkery v Carpenter [1951]1 KB 102

.A person could be arrested if found drunk in

charge of a carriage on the highway. The

defendant had been arrested for being drunk

in charge of a bicycle on the highway.

The court held that a bicycle was a carriage for

the purposes of the Act because the mischief

aimed at was drunken persons on the highwayin charge of some form of transport, and so

the defendant was properly arrested.


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DPP v Bull [1994]4All ER 411.

A man had been charged with loitering or

soliciting in a street or public place for the

purpose of prostitution.

The court held that the term prostitute was

limited to female prostitutes. The mischief

the Street Offences Act 1959 was intended to

remedy was a mischief created by women.


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Pros of the Mischief Rule

allows judges to put into effect the remedy Parliament

chose to cure a problem in the common law.

was developed at a time when statutes were a minor

source of law; drafting was not as precise as today and

before Parliamentary supremacy was established.

Cons of the Mischief Rule

Judges can rewrite statute law, which only

parliament is allowed to do.

must be possible to discover the mischief in

order for this rule to be used.


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Purposive Approach

The purposive approach is one that will

promote the general legislative purpose

underlying the provisions (per Lord Denning

MR in Notham v London Borough of Barnet

[1978] 1 WLR 220). There will be a comparison

of readings of the provision in question based

on the literal or grammatical meaning ofwords with readings based on a purposive

approach.


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Jones v Tower Boot Co Ltd [1997]2 All ER 406.

The complainant suffered racial abuse atwork, which he claimed amounted to racialdiscrimination for which the employers wereliable under s32 of the Race Relations Act

1976. The CA applied the purposive approachand held that the acts of discrimination werecommitted in the course of employment.Any other interpretation ran counter to the

whole legislative scheme and underlyingpolicy of s32.


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Pros

gives effect to the true intentions ofParliament.

Cons

It can only be used if a judge can find

Parliaments intention in the statute or

Parliamentary material.

Judges can rewrite statute law, which onlyParliament is allowed to do.


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Integrated (or Unified Contextual

Approach

Sir Rupert Cross, Statutory Interpretation (3rd ed,1995), suggested that there was a unified approach tointerpretation:

(i) The judge begins by using the grammatical and

ordinary or technical meaning of the context of thestatute;

(ii) If this produces an absurd result then the judge mayapply any secondary meaning possible;

(iii) The judge may imply words into the statute or alter orignore words to prevent a provision from beingunintelligible, unworkable or absurd; and

(iv) In applying these rules the judge may resort tovarious aids and presumptions.


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Mandla v Dowell Lee

Controversial instance of statutory

interpretation

Courts (HL and CA

) divided on application ofstatute and the Race Relations Act

Interpretation of ethnic in respect of Sikhs


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Impact ofEU Membership

UKs accession to EU altered the standing of

parliamentary sovereignty

A

ll UK legislation must be interpreted to avoidconflict with EU law ECA1972, s.2

ECJ adopts a teleological (purposive) approach

which appears to have increasingly influenced

UK law

Is the use of this approach on the increase in

UK?


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Impact of the Human Rights Act 1998

S.3(1) requires legislation to be read in a way thatis compatible with Convention rights so far as itis possible to do so; judges will have this in mindwhen adopting a purposive approach

S.4 where it is not possible to give aninterpretation that is compatible with theConvention the higher courts may issue adeclaration of incompatibility

The declaration will not affect the validity of thestatute, its continuing operation or enforcement

s.3(2)(b)


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HRA

Principles of Human rights are not foreign to

English law right to fair trial, freedom of

speech, etc

Judges are not empowered to strike down

legislation that is incompatible this would

usurp fundamental constitutional principles,

i.e., separation of powers and parliamentarysovereignty

Documents

CLR Statutory Interpretation