What is golden rule, advantages and disadvantages. advantages and disadvantages of literal rule PDF

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What is golden rule, advantages and disadvantages. advantages and disadvantages of literal rule...

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Literal Rule, Golden Rule ➔ Advantages of the literal rule It respects parliamentary sovereignty, giving the courts a restricted role and leaving law-making to those elected for the job. ➔ Disadvantages of the literal rule Where use of the literal rule does lead to an absurd or obviously unjust conclusion, it can hardly be said to be enacting the will of Parliament, since Parliament is unlikely to have intended absurdity and injustice. London and North Eastern Railway Co v Berriman

Case: The case of London and North Eastern Railway Co v Berriman is an example of literal interpretation creating injustice where Parliament probably never intended any – the difference in the type of work being done does not change the degree of danger to which the workers were exposed. Literal rule

In addition, the literal rule is useless where the answer to a problem simply cannot be found in the words of the statute. As Hart (1994) has pointed out, some terms have a core of very clear meaning, but it may still be unclear how far that word stretches: the example above of an imaginary law banning ‘vehicles’ from the park clearly illustrates this. Where such a broad term is used, the answer is simply not there in the words of the statute, and the courts have to use some other method. The Law Commission in 1969 pointed out that interpretation based only on literal meanings ‘assumes unattainable perfection in draftsmanship’; even the most talented and experienced draftsmen cannot predict every situation to which legislation may have to be applied. One should not expect too much of words, which are always an imperfect means of communication. The same word may mean different things to different people, and words also shift their meanings over time. Zander, in his book The Law-Making Process (2004), describes the literal approach as ‘mechanical, divorced both from the realities of the use of language and from the expectations and aspirations of the human beings concerned . . . in that sense it is irresponsible’. In R (on the application of Haw) v Secretary of State for the Home Department (2006), the Court of Appeal refused to apply a literal interpretation to a new piece of legislation, as it considered that this would not reflect the intention of Parliament. The case concerned Brian Haw, who had been holding a protest in Parliament Square, opposite Parliament, against the war in Iraq since June 2001. He lived on the pavement and displayed a large number of placards protesting about Government policy in Iraq. The demonstration had earlier been held to be lawful, since it neither caused an obstruction nor gave rise to any fear that a breach of the peace might arise. Section 1. 33(1)

The Serious Organised Crime and Police Act 2005,s. 133(1) was subsequently passed, which required any person who intended to organise a demonstration in the vicinity of Parliament to apply to the police for authorisation to do so. Section 132(1)

Section 132(1) provided that a person who carried on a demonstration in the designated area was guilty of an offence if, when the demonstration started, appropriate authorisation had not been given:

(1) Any person who – (a) organises a demonstration in a public place in the designated area, or (b) takes part in a demonstration in a public place in the designated area, or (c) carries on a demonstration by himself in a public place in the designated area, is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2). Haw argued that the Act did not apply to his demonstration because it had started before the Act came into force. The Court of Appeal held that the Act did in fact apply to Haw’s demonstration: ‘Any other conclusion would be wholly irrational and could fairly be described as manifestly absurd.’ Construing the statutory language in context, Parliament’s intention was clearly to regulate all demonstrations in the designated area, whenever they began. Thus, rather than following a literal interpretation of the legislation, the court looked at its context to determine the intention of Parliament. The court gave particular weight to the fact that the 2005 Act repealed a provision in the Public Order Act 1986. That provision had provided for controls to be placed on public demonstrations and would have applied to demonstrations which had been started since 1986. The Court of Appeal thought it was inconceivable that Parliament would have intended to repeal that power to control demonstrations started before 2005 and replace it with legislation which could only control demonstrations started after 2005, as this would leave a significant gap in the power of the state to control demonstrations. Conditions were subsequently imposed on Haw’s demonstration in accordance with the provisions of the 2005 Act, aimed primarily at restricting the size of the demonstration. It was accepted that Haw’s demonstration in itself did not pose a security risk, but if a large number of people joined his demonstration this could be an opportunity for terrorists to join in and conceal an explosive device. A new framework for regulating protests around Parliament Square is contained in the Police Reform and Social Responsibility Act 2011, replacing the relevant provisions in the 2005 Act. The golden rule This provides that if the literal rule gives an absurd result, which Parliament could not have intended, then (and only then) the judge can substitute a reasonable meaning in the light of the statute as a whole. It was defined by Lord Wensleydale in Grey v Pearson (1857): ‘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 case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.’ Examples of the golden rule in use are: R v Allen (1872)

Section 57 of the Offences Against the Person Act 1861 stated that ‘Whosoever being married shall marry any other person during the life of the former husband or wife . . . shall be guilty of bigamy.’ It was pointed out that it was impossible for a person already married to ‘marry’ someone else – they might go through a marriage ceremony, but would not actually be married; using the literal rule would make the statute useless. The courts therefore held that ‘shall marry’ should be interpreted to mean ‘shall go through a marriage ceremony’. Maddox v Storer (1963)

Under the Road Traffic Act 1960, it was an offence to drive at more than 30 mph in a vehicle ‘adapted to carry more than seven passengers’. The vehicle in the case was a minibus made to carry 11 passengers, rather than altered to do so, and the court held that ‘adapted to’ could be taken to mean ‘suitable for’.

Adler v George (1964)

The defendant was charged under s. 3 of the Official Secrets Act 1920, with obstructing a member of the armed forces ‘in the vicinity of any prohibited place’. He argued that the natural meaning of ‘in the vicinity of’ meant near to, whereas the obstruction had actually occurred in the prohibited place itself, an air force station. - The court held that while in many circumstances ‘in the vicinity’ could indeed only be interpreted as meaning near to, in this context it was reasonable to construe it as including being within the prohibited place. ➔ Advantages of the golden rule The golden rule can prevent the absurdity and injustice caused by the literal rule, and help the courts put into practice what Parliament really means. ➔ Disadvantages of the golden rule The Law Commission noted in 1969 that the ‘rule’ provided no clear meaning of an ‘absurd result’. As in practice that was judged by reference to whether a particular interpretation was irreconcilable with the general policy of the legislature, the golden rule turns out to be a less explicit form of the mischief rule...