Statutory Interpretation PDF

Preview

Summary

STATUTORY INTERPRETATION INTRODUCTION: The legislature makes law. Statutes of law, also known as legislation, are the written laws of the United Kingdom. They are created and implement by Parliament, and enforced by various authorities, prosecuting bodies, and so on. Interpreting the meaning of legi...

Description

STATUTORY INTERPRETATION INTRODUCTION: The legislature makes law. Statutes of law, also known as legislation, are the written laws of the United Kingdom. They are created and implement by Parliament, and enforced by various authorities, prosecuting bodies, and so on. Interpreting the meaning of legislation is not always straightforward and, in some cases, it must be applied to real situations. It is impossible for Parliament to spell out how a statute should apply in every situation. It is therefore necessary for the judiciary to interpret the framework provided by Parliament and give effect to their words. As Tindal Cj Sussex Peerage Case (1844) claim approach ‘’ The rule for construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. However, there are two fundamental complexities in this simple statement. First, the natural limitations of language mean that interpreting the meaning of words can sometimes be fraught. Different judges in the same case may interpret words differently and it is necessary to understand the approach that the judiciary take to this difficult task. The second challenge for the judiciary in giving effect to Parliament’s intention is that it is not always clear precisely what Parliament did intend when they used a particular word or phrase in an Act of Parliament.

Why is the interpretation of statutes so difficult? Interpretation is an essential step in human communication. We all interpret the meaning of spoken and written words to ‘make sense’ of what is being read or heard. However, there are special challenges in interpreting statutes. As explained by Francis Bennion in his famous book Statute law (1990) there are a number of features of statutes that make interpretation difficult. These include:

 

 

Ellipsis – when the draftsperson refrains from using certain words that they regard as implied automatically. Use of broad terms (wide meaning); for example, ‘vehicle’ clearly includes motor cars, buses – but what else does it include? (Brock v DPP (1993) on the meaning of ‘type’ in the Dangerous Dogs Act 1991). Unforeseeable developments – New developments can lead to words not covering present-day situations (Royal College of Nursing v DHSS (1981)). Inadequate use of words – printing errors, drafting errors.

Why does interpretation matter so much?

1

The way in which a judge interprets the meaning of a particular word may make the difference between a defendant in a criminal trial being found innocent or guilty. The distinguished jurist A.V. Dicey noted how important the interpretative work of the judges is: Statutes themselves, though manifestly the work of Parliament, often receive more than half their meaning from judicial decisions.

Approaches to statutory interpretation: There are two contrasting views with respect to how judges should go about determining the meaning of a statute.

Literal approach: 1. The literal approach gives words their plain, ordinary, dictionary meaning. 2. The literal approach is preferred by ‘conservative’ judges who do not believe that a judge’s role is to create law. Purposive approach

Purposive approach 3. The purposive approach is a broader approach. Judges try to decide what Parliament was trying to achieve. 4. The purposive approach is the one favored by activist or creative judges, such as Lord Denning.

1.THE LITERAL RULE: The literal rule requires the judges to give the word or phrase its natural, ordinary and dictionary meaning (Pinner v Everett). Even if this reading creates an unjust outcome, as Lord Esher noted, in R v Judge of the City of London Court, '..if the words of an Act are clear then you must follow them even though they may lead to a manifest absurdity.. An ancient example of the use of the literal rule is the case of R v Harris (1836) which involved interpreting an offence to ‘unlawfully and maliciously stab, cut or wound any person’. The court decided that a defendant who bit off the end of the victim’s nose had not committed the offence. The court held that the words in the statute indicated that for the offence to be committed some form of instrument had to be used. The Literal Rule. For example, in the R v Maginnis case (1987), the defendant was charged with possession of a controlled drug with intent to supply under the misuse of drugs act 1971 (s.5). The defendant claimed that the drugs belonged to a friend who was picking them up later. The judge stated that handing the drugs back was supply. The case was upheld on appeal. In his speech at the appeal, Lord Keith proposed that: “The word ‘supply’ in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other." 2

Lord Goff dissented saying: "I do not feel able to say that either the delivery of goods by a depositor to a depositee , or the redelivery of goods by a depositee to a depositor, can sensibly be described as an act of supplying goods to another."

Advantages and disadvantages of the operation of the literal rule The literal rule applies the law as Parliament has explicitly written it and therefore upholds the doctrine of Parliamentary sovereignty. It can be seen as democratic by directly following Parliament's word rather than those of unelected judges. Use of the literal rule highlights laws that need revising and laws that have been inadequately drafted. For exemple in Partridge v Crittenden, a case where protected birds were for sale but a loophole in contract law meant the defendant was found not guilty (as in Fisher v Bell). In reaction to the unfair results of these cases Parliament introduced a new contract law. Literal rule creates certainty as by reading a law it is easier to determine the meaning and so reduces litigation. The Law Commission's 'Report on Interpretation of Statutes' (1969) noted the rule encourages precision in drafting. However, the literal rule can lead to absurdities (Whitley v Chappell), loopholes and injustices (Fisher v Bell Partridge v Crittenden). The rule fails to recognize the English language is ambiguous and ignores the limitations of drafting, a point made by the Law Commission in their 1969 Report. The literal rule also criticized because it can lead to what are considered harsh decisions, as in London and North Eastern Railway Co v Berriman (1946) The rule itself assumes Parliament intended for a literal reading of the Act. It also sometimes requires use of another rule or aid to interpretation such as a dictionary or punctuation so is not simply a 'literal' reading.

2.THE GOLDEN RULE judges have suggested that a court may depart from the ordinary meaning where that would lead to absurdity. In Grey v Pearson (1857) HL, Lord Wensleydale said: "the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which 3

case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further." This rule is considered to be an extension of the Literal Rule. It is applied where an application of the Literal Rule would result in an absurdity. The Golden Rule may take one of two forms:

The narrow meaning: this approach is adopted when a word has potentially two different meanings. The narrow approach of the Golden Rule determines that priority is given to the meaning that does not produce a manifest absurdity. Adler v George (1964) The wider meaning: this approach is adopted when there is only one possible meaning of a given word, but a literal interpretation will result in a manifest absurdity, inconsistency or inconvenience. Re Sigsworth (1935)

Advantages and disadvantages of the operation of the golden rule The golden rule can avoid absurdities as illustrated by Allen. In this case if the literal rule had been used it could have meant because no bigamous marriage is lawful that bigamy is impossible. Therefore, the judge used the golden rule. The golden rule can help avoid repugnant outcomes. In Re Sigsworth a son had murdered his mother. She had left no will so her estate would be inherited by her next of kin, her son. The golden rule was used to prevent the repugnant situation of the son inheriting. Use of the rule respects Parliamentary Sovereignty, arguable more than the literal approach, because the exact words are adhered to except in limited situations. The only assumption is that Parliament never intends to pass absurd law which is quite reasonable.. The rule can be criticised as it lacks of definition of the central issue - what is absurd or repugnant? This can make the law uncertain which in turn makes legal advice difficult and increases litigation. This was highlighted by the Law Commission's Report on Interpretation of Statutes (1969) which also said the rule is. a less explicit form of the mischief rule...

Mischief Rule The mischief rule is applied to find out what Parliament meant. It is a contextual method of interpreting statutes, and looks for the wrong, or mischief, which the stature was trying to correct. The statute is then interpreted in the light of this. The rule is an old rule, based on the Heydon’s Case (1584) in which certain steps were indentified as a way to interpretation. It was said that judges should: ·

Consider what the law was before the Act was passed;

·

Identify what was wrong with that law;

·

Decide how Parliament intended to improve the law through the statute in question;

4

·

Apply that finding to the case before the court.

Broadly speaking, therefore, the rule requires that where an Act has been passed to remedy a weakness or defect in the law, the interpretation which will correct that weakness or defect is the one to be adopted. An example of where the mischief can be seen in the case of Smith v Hughes (1960). Some prostitutes were accused of soliciting, contrary to the Street Offences Act 1958 which made it offence to ‘solicit in a street…for the purpose of prostitution’. The defendant, along with other prostitutes, sat on a balcony, or inside a building tapping on the window, to attract the attention of men in the street. Interpreted literally, there would therefore be no offence. Applying the mischief rule, it did not matter that the women were not themselves in the street, as they were still soliciting men in the street, which was what the Act was designed to prevent. They were therefore found guilty. Lord parker said, ‘Everybody knows that this was an Act intended to clean up the streets…I am content to base my decision on that ground and that ground alone’.

advantages and disadvantages of the operation of the mischief rule The mischief rule avoids absurd and unjust outcomes. For example, it is an offence to operate a live sex venue without a licence from the local authority. The Act referred to performances which were not unlawful. In McMonagle v Westminster City Council, the defendant argued the performances were unlawful and therefore his conviction for not having a licence should be overturned. The House of Lords decided to ignore the words not unlawful and the guilty verdict was upheld. The rule is flexible which leads the law to be applied as intended by Parliament rather than just applying the law as stated by Parliament. This is illustrated by Smith v. Hughes, where the intention was clear as noted by Lord Parker .. everybody knows that this was an Act intended to clean up the streets..... The Law Commission's Report on Interpretation of Statutes (1969) endorsed this approach as .. rather more satisfactory... than other rules. Although it can be argued it is an outdated approach. It was established in Heydon's Case (1584) when the legal system was different in a number of important ways. At that time common law was the main source of law, parliamentary supremacy was not so established, Acts contained lengthy preambles which spelt out the mischief it aimed to remedy, judges usually drafted Acts on behalf of the King and drafting was less exact. The rule allows for judicial law making which can be argued is undemocratic as it gives power to decide to unelected judges. Infringement on the role of legislators is illustrated in Royal College of Nursing v DHSS where Lord Edmund-Davies stated .. redrafting with a vengeance...

5

of the Abortion Act 1967 was necessary to protect a large number of nurses who otherwise would have been performing illegal abortions. Also it can often be difficult to identify the mischief as shown in Attorney General v Associated Newspapers Ltd a case about disclosure of jury deliberations. This can lead to further uncertainty and power in interpretation given to judge.

Purposive interpretation Although similar to the mischief rule, judges adopting a purposive approach to interpretation are taking a wider view and essentially trying to decide what Parliament intended to achieve in passing an Act. This approach encourages the judge to look for the ‘spirit of the Act’, and to read words into or out of the Act when this is necessary. A clear statement of this approach comes from the judgment of Denning LJ in Magor & St Mellons RDC v Newport Corporation [1950] (CA); (HL). He said: 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 by opening it up to destructive analysis. Denning LJ was severely criticised when the case was appealed to the House of Lords on the ground that Lord Denning had gone beyond the proper role of the judge. The concern is that the further judges move away from the language of the Act, the more likely they are to be engaging in a legislative or quasi-legislative function Lord Simmons: He said ‘’ a naked usurpation of the legislative function under the thin disguise of interpretation... if a gap is disclosed, the remedy lies in an amending Act.

Advantages and disadvantages of the operation of the purposive approach The purposive approach is flexible as noted by Lord Bingham who described it as the '.. creative process of supplying flesh to a spare and loosely constructed skeleton' (Samex Case). In Pepper v Hart Lord Reid stated '..to achieve the intent and produce a reasonable result we must do some violence to the words...'. The approach allows for scientific advances as illustrated by Quintavalle, a case concerning a new process for creating live human embryos. The court decided if Parliament had wanted to ban cloning it would have said so the new approach was not prohibited. The approach allows for a decision in the case without referring back to Parliament. This saves time and money and helps ensure justice in individual cases. In Tesco v Brent London Borough Council , a 14 year old was illegally sold a video rated 18, the court held not the company not the checkout operator was liable. The approach makes interpretation more consistent with Europe. In Pickstone v Freemans the purposive approach was used to decide an equal pay case. 6

In Fitzpatrick v Sterling Housing Association the purposive approach was used to decide 'family' in the Rent Act 1977 included homosexual relationships. The dissenting judges argued it was public policy matter not for judges to decide.’

The Impact of Human Rights Act on Statutory Interpretation Background English common law has provided protection for human rights since the 12th century, although the approach has been one of negative rather than positive protection. This is what is referred to as the ‘negative theory of rights’ which says that citizens can do whatever they like unless it is specifically prohibited by non-retrospective laws which are clear and accessible to the governed. The common law also constrained the power of government, ensuring that it acted according to law and not in excess of its powers. An example of protection of human rights prior to the implementation of the HRA 1998 is the case of R v Lord Chancellor ex p Witham (1998). Where The Lord Chancellor had no power under existing legislation to prescribe court fees in such a way as to deprive a citizen of his constitutional right of access to the courts. Laws J said “The common law has clearly given special weight to the citizen’s right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.’’ The case of Lord Chancellor v Witham was heard before the enactment of the Human Rights Act, 1998 which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right (Section 6(2)). This development in the law clarifies constitutional rights and therefore a decision would today not be required as to whether access to the courts is a fundamental right.

The interpretation of domestic legislation after the Human Rights Act 1998 Section 3 of the Human Rights Act 1998 states: ‘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’. Therefore when interpreting a statute, judges should, ‘so far as it is possible’, choose the interpretation which leads to the result that is more compatible with the European Convention on Human Rights (ECHR) than any other. Section 3(2) provides that s.3(1) does not affect the validity, continuing operation or enforcement of any incompatible primary or delegated legislation.

7

Two strong promoters of the HRA, Lord Lester and Lord Pannick, writing about the responsibility of the courts under s.3, have said that: ‘’the role of the court is not (as in traditional statutory interpretation) to find the true meaning of the provision, but to find (if possible) the meaning which best accords with Convention rights’’. A good example of the difference the HRA 1998 has made to interpretation is R v Offen [2000]. This case considered the meaning of the word ‘exceptional’ in the Crime (Sentences) Act 1997 where any offender committing a second serious offence had to be given a life sentence unless there were ‘exceptional circumstances’. Before the HRA 1998 came into force the Court of Appeal in R v Kelly [2000] had said that ‘exceptional’ was an ordinary English adjective, saying: ‘To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one that is regularly or routinely or normally encountered.’ This led to a strict approach where offenders were given life sentences even when the earlier crime had been committed a long time ago and the second offence was not that serious of its type. In Offen (2000), which was decided after the HRA 1998 came into force in October 2000, the Court of Appeal said that this restricted approach in Kelly (2000) could lead to the sentence being arbitrary and disproportionate and a breach of both Articles 3 and 5 of the European Convention on Human Rights. In order to interpret the Crime (Sentences) Act 1997 in a way which was compatible with the Convention, it was necessary to consider whether the offender was a danger to the public. If he was not, then he was an exception to the normal rule in the 1997 Act, and this could be considered exceptional circumstances so that a life sentence need not be given. However, the provision does not allow the courts to read words into a statute that are clearly not there, or involve itself in judicial legislation ( Poplar Housing and Regeneration Community Association Ltd v Donoghue (2001) ); Re W and B (Children: Care Plan); In Re W (Child: Care Plan) (2002)