Statutoryinterpretation

3rd March 2014http://sixthformlaw.info/index.htm

Rules of English law

• A. Judge made law – (a) Common Law • (b) Equity • apply - Judicial Precedent • B. Formal Law – (a) Statute • (b) Delegated Legislation • apply - Statutory Interpretation • C. European Union Law • apply - Human Rights Act 1998

Civil law

• The subject is granted certain ‘rights’. • If these rights are violated, the person may sue • To recover those rights and / or damages. • The rights are vaguely stated. • It is for the courts to decide, on a case to case basis, • Whether the persons rights have been unlawfully

violated. • This often involves a balancing of rights. • e.g. f’dom of expression cf defamation ; • assault cf medical procedure

Common law

• Under the Common Law, a person’s rights are residual • i.e. the person is allowed to do anything he wants to do • unless there is legislation prohibiting that action. • Thus the prohibition must be explicit. • Any inconsistency or vagueness in the legislation • is interpreted in favour of the person

Is this clear?

• Are the following • allowed in? • Bicycles • Tricycles • Roller skates • Push pram • Model car / aeroplane • Motorized wheelchair

interpretation

• This is necessary when the one who makes the rules • is not the one who implements /enforces them.• We need to discover what was meant by what was said. • How do we do this? • Should we stick to what was said? • Or should we go by what was intended• (or meant) by what was said? • How do we establish intention?

The mischief rule

• The earliest ‘rule’ of SI was the mischief rule. • Or the rule in Heydon’s case 1584• 1. What was the CL before the making of the Act.• 2. What was the mischief / defect for which the common

law did not provide.• 3. What remedy has Parliament resolved and appointed

to cure the mischief / defect.• 4. The Judge is to make such construction as shall

suppress the mischief and advance the remedy.

The mischief rule

• This rule gives the court justification • for going behind the actual wording of the statute • in order to consider the problem • that the statute was aimed at remedying. • It is clearly the most flexible rule of interpretation, • but it is limited to using CL to determine • what mischief the Act was designed to remedy.• (‘Historical’ approach )

Corkery v Carpenter (1951)

• Shane Corkery, while drunk, was pushing his pedal bicycle along the street. He was charged with being in charge of a carriage while drunk. The Act only covered ‘carriage’ and made no reference to bicycles. • The court used the mischief rule to decide the purpose

of the Act was to prevent people from using private transport on a public highway whilst intoxicated. The bicycle was a form of transport and D was convicted.

The mischief rule

• This was easier at that time, • because judges also drafted the legislation. • So judges knew the intent of Parl • quite intimately. • Today legislation is drafted by dumb draftsmen • on the instructions of faceless Ministry officials • instructed by clueless Ministers.

Rcn v Dhss 1981

• It is an offence under the Abortion Act for anyone • other than a qualified medical practitioner • to induce an abortion. • At that time, an abortion involved dingy premises • and the innovative use of a metal coat hanger. • Advances in medicine meant that • an abortion could be performed by a simple drug • given by a nurse in a hospital. Is this wrong?

Tussle for power

• There was a tussle for power • between the Courts and Parliament. • The Courts tried to frustrate Parl • by suggesting that Parl was not serious • about the changes Parl had wanted to make. • This resulted in Parl insisting • that the Courts implement exactly what Parl said, • nothing more, nothing less.

Separation of powers

• This is in keeping with the doctrine. • The Legislature (Parl) makes the law. • The Judiciary (the Courts) implements the law • as it was passed. • It is not the role of the courts • to second guess the legislature.

The literal rule

• Duport Steel v Sirs (1980) Lord Diplock noted:• Where the meaning of the statutory words is plain and

unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.

The literal rule

• But language, even (especially?) English, • is not a lingo of mathematical precision. • Can one possibly say exactly what one means, • or mean exactly what one says. • The idea that one could has led • to some unfortunate outcomes.

Fisher v Bell (1960)

• The Restriction of Offensive Weapons Act 1959 made it an offence to offer for sale offensive weapons. Bell, a shopkeeper, displayed a flick knife in his shop window. • On appeal, it was held that Bell had not ‘offered for sale’

the knives. In the law of contract, a display in a shop window is merely an invitation to treat. • Note Parliament got pissed and changed the law to make

‘displaying’ an offensive weapon an offence.

(Dis)Advantages

• The literal rule requires accuracy in legislation, • which is a good thing.• But does placing such emphasis assume • an unobtainable perfection in draftsmanship?

The golden rule

• Lord Wensleydale in Grey v Pearson (1857) HOL that:• The grammatical and ordinary sense of the words • is to be adhered to unless that would lead • to absurdity or repugnance or inconsistency • with the rest of the instrument. • The grammatical and ordinary sense of the words • may be modified so as to avoid the absurdity and

inconsistency, but no farther.

Rookes v Barnard (1964) HL

• per Lord Evershed:• I think, [in] only two cases … it is permissible to depart

from the ordinary and natural sense of the words of an enactment. • It must be shown either• that the words taken in their natural sense lead to some

absurdity or• that there is some other clause in the body of the Act

inconsistent with, or repugnant to, the enactment in question • construed in the ordinary sense of the language in which

it is expressed."

Adler v George (1964)

• Under s 3 of the Official Secrets Act 1920, • it was an offence to obstruct HM Forces • while ‘in the vicinity of’ a prohibited place. • Adler was charged with obstructing under s 3. • He argued that he was not ‘in the vicinity of’ • a prohibited place but ‘in’ it. • The court read in the words ‘or in’ to the statute• to cover the present circumstances.

Re Sigsworth (1935)

• A son killed his mother. The mother died intestate. • Her estate would go to her next of kin, i.e. her son.• There was no ambiguity in the words of the Act. • The court would not let the son benefit from his crime.• The literal rule should not apply. • The golden rule was used to prevent • the repugnant situation of • the son inheriting from a murder.

Sir rupert Cross

• But how does one apply the three (3) • often conflicting approaches to interpretation? • When must a judge use one and when another? • Cross’ Unified Contextual Approach • Arranged the ‘rules’ of SI into • Some semblance of order• BUT Cross was a mere academic • Not a senior judge (thus no JP applied)

Unified Contextual Approach

• First, because of the separation of powers, • Courts must apply the literal rule • i.e. the clear expressed intention of the Parl • If this would result in an absurd outcome, • The court may use the golden rule • to modify the words and remove the absurdity (only). • If the words used are ambiguous or unclear,• then use the mischief rule to discover the purpose

but

• What is an absurdity?• no test exists to determine what is an absurdity. • In the cases under the literal rule, • the judges were not swayed • by the argument that their decision • would result in an absurd outcome.

Magor vst mellons Newport corpn (1950)

• Lord Denning MR stated: ‘we sit here to find out the intention of Parliament 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’.• This attitude was criticised by Lord Simmons who called

this ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. • Lord Simmons said that ‘if a gap is disclosed, the remedy

lies in an amending Act (by Parl)’.

Intention

• How can Parliament's intentions be determined? • Should judges really be refusing to follow the clear words

of Parliament? • The purposive approach is used by most European (civil

law) countries when interpreting legislation. • It is also the approach which is taken by the European

Court of Justice in interpreting EU law.• And the UK is a member of the EU.

Three Rivers District Council v Bank of England [1996]

• Whilst the English courts continue to place their emphasis on the language of the statute, there is an increasing willingness to resolve ambiguities in domestic legislation by reference to the statutory purpose (and even to read words into the statute where this is inadequate to give effect to an EC directive)

Aids to interpretation

• One obvious advantage to the literal rule • intention is understood from the words used. • In a purposive approach, one goes beyond this • to try to discern the intended meaning.

The purposive approach

• If you are not limited by the words• How then do you discover intention?• Notham v London Borough of Barnet [1978] CA• per Lord Denning MR: • the purposive approach is one that will "promote the

general legislative purpose underlying the provisions"

Aids to Interpretation

• Internal Aids• These are aids within the statute itself• The Long / Short Title • The Preamble and Definitions sections • Other sections in pari materia

Aids to Interpretation

• External Aids • (These are aids outside that statute)• Guiding statutes – e.g. HRA 1998, IA 1978• Other statutes in pari materia• (whether existing or repealed) • Judicial Precedent, Dictionaries • Academic works by learned authors• Parliamentary Materials

Hansard

• Can / Should the Courts refer to Hansard in order to understand the purpose of the Legislation? • To do so would cross the fine line that separates Politics

from Judiciary. • Not to do so would be to ‘grope in the dark’ when one

could just ‘switch on the light’ – Denning MR

Hansard

• Pepper v Hart [1993] overturned Black Clawson • Their Lordships ruled (6:1) that Hansard could be

referred to by courts where: • • Legislation is ambiguous or obscure, or leads to an

absurdity • • The material relied upon consists of statements by a

minister promoting the Bill • • The statements relied upon are clear

Presumptions

• There are many presumptions in Common Law. • The Courts will not depart from these presumptions

unless the words used by Parl are clear. • e.g. • Person charged is presumed to be innocent • Parl does not intend retrospective legislation • Legislation is not intended to cover the Crown • Parl will not avoid its international obligations • (these presumptions apply in varying degrees)

Pickstone v Freemans plc (1998)

• The question was whether a woman warehouse operative employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the statute. • The HOL decided that the literal approach would leave

the UK in breach of an EU directive. It therefore used the purposive approach to sort out the case.

Rules of language

• Ejusdem generis – where a list of words are followed by general words, the meaning of the general words are limited to the genus of the list • Expressio unius est exclusio alteris – the expression of

the one is the exclusion of the other. Thus mention of the thing will mean the exclusion of what was not mentioned. • Noscitur a sociis – the meaning of a word is known by

the company that it keeps. Thus the words must be looked at in the context of what was said.

Wood v Commissioner of Police of the Metropolis (1986) QBD

• An accidentally broken glass was not ejusdem generis with "any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon"

Powell v kempton 1899

• A statute prohibited the keeping of “a house, office, • room or other place” for betting. The defendant kept an • uncovered enclosure at a race course for betting. • The House of Lords held that the enclosure was not an

“other place” within the meaning of the statute. • It was not ejusdem generis with the particular places

previously listed as they were all indoor places.

Rules of language

• Ejusdem generis – where a list of words are followed by general words, the meaning of the general words are limited to the genus of the list • Expressio unius est exclusio alteris – the expression of

the one is the exclusion of the other. Thus mention of the thing will mean the exclusion of what was not mentioned. • Noscitur a sociis – the meaning of a word is known by

the company that it keeps. Thus the words must be looked at in the context of what was said.

Tempest v kilner 1846

• "goods, wares and merchandise" • did not include stocks and shares

R v harris 1836

• Harris bit of the end of a woman’s nose. The prosecution alleged the bite was included in "stab, cut or wound". This implied that some instrument must be used. • Held: it was evidently the intention of the legislature,

according to the words of the statute, that the wounding should be inflicted with some instrument, and not by the hands or teeth.

Rules of language

• Ejusdem generis – where a list of words are followed by general words, the meaning of the general words are limited to the genus of the list • Expressio unius est exclusio alteris – the expression of

the one is the exclusion of the other. Thus mention of the thing will mean the exclusion of what was not mentioned. • Noscitur a sociis – the meaning of a word is known by

the company that it keeps. Thus the words must be looked at in the context of what was said.

Irc v frere 1965

• ‘Interest’ meant annual interest. If the words - ‘other annual interest’ – had been left out, the interest could have meant any interest - weekly, monthly and so on.

Muir v Keay (1875) QBD

• D ran premises called The Café; it was found open during the night, and seventeen women and twenty men were there. They had been supplied with cigars, coffee, and ginger beer, which they consumed.• Held: The house was kept open for public refreshment,

resort, and entertainment, and required a licence.

If the words used are crystal clear?

• Are the literal / golden / mischief rules • (or any other approaches) • still available? • Can a judge still apply the clear • – albeit ridiculous – words of a statute?• Or must the judges only use • a purposive approach?

Human rights act 1998

• S 3 HRA 1998 : requires a court to read and give effect to legislation in a way compatible with the ECHR. • The ECHR inter alia (– among other things) • disallows discrimination e.g. on the basis of colour, class

creed, gender (sex) or sexual orientation – Art 14. • Thus in Mendoza v Ghaidan 2008 HOL• ‘his or her wife or husband’ • was read as including ‘his/her wife /husband’

Mendoza v ghaidan 2008 hol

• The purpose of the legislation must be applied • Even in the face of clear (conflicting) words. • The ‘purpose’ of the legislation in this case, • in light of the Human Rights Act 1998• (which is to be applied retrospectively)• is to make English law more ‘Community-centric’ • (in this case, non-discriminatory)

Before I forget

• I shall see you for Lectures • on Monday 10th March (10 to 1)• on Delegated Legislation • and Tutorials • on Monday 11th March (2 to 3.30 OR 3.30 to 5)• on Common Law and Equity

Draft an outline

Norman Conquest Chief Justice / Circuit Judges Common Law & CustomsDefects /Deficiencies King & Lord Chancellor Rise of Equity Conflicts btwn CL & E Maxims of EquityThe Earl of Oxford’s caseAnd resolution

‘Merger’ of CL & E CJA 1873/75 & SCA 1981 Is Equity still relevant? CLP v HTH 1946 Anton PillarMareva Norwich Pharmacal (Denning)(The Great Peace)Your Opinion

Exercise

• Trafficking in Persons • Prof Lon Fuller