Statutory Interpretation + Aids (copy)

Literal Rule

Judiciary rules on denotation of Parliament’s words, they are taken literally

Advantages of the Literal Rule

• It respects the theory of separation of powers as the judiciary must follow the legislature’s words

• Some judges argue that they are doing a service to Parliament by drawing attention to faulty legislation and loopholes to their attention.

• It creates certainty and consistency in the law which means that it’s easier for lawyers to advise their clients.

Disadvantages of the Literal Rule

• Produces absurd, unjust, and indefensible outcomes which do not accurately represent Parliament’s intentions.

• It ignores the fact that language has its limitations and can change over time.

• It demands unattainable standards of Parliamentary draftsmen.

Whiteley V Chappell 1868

A man was impersonating a dead person when trying to vote. The defendant was acquitted for his supposed crimes as the act pertaining to voting said that a person can vote if they are “entitled to vote.” When you are dead, you are not entitled to vote.

LNER v Berriman 1946

• Berriman was killed whilst oiling a track.

• The Prevention of Accidents Act 1902 states that a “look-out man must be provided where working men on or near the traffic lines for the purpose of relaying or repairing.”

• Compensation was not awarded as oiling the track did not classify as “repairing or relaying”

The Golden Rule

• This is a modification of the Literal Rule as it starts by looking at the meaning of words.

• Judges are allowed to avoid an interpretation which would lead to an absurd outcome, but judges should not go beyond it.

Narrow and Wider Approach

Under the broad approach, the court will modify the meaning to avoid the absurdity so in the narrow approach, the judge chooses the meaning that avoids the absurdity

Advantages of the Golden Rule

• There is flexibility and avoidance of absurdity as it helps ensure that the law is interpreted in a way that is just, fair, and sensible.

• There is an alignment with legislative intent as the Golden Rule helps the court to align their interpretation with the legislature.

• By permitting departures from the literal meaning it allows for a more contextual interpretation which eventually leads to justice and fairness.

Disadvantages of the Golden Rule

• There is the potential for judicial subjectivity as the definition of absurd can differ from judge to judge which can lead to inconsistency in outcomes.

• There is the potential for judicial overreach. Critics argue that this rule can give judges too much discretion and power. It may allow judges to substitute their own views as it goes against the separation of powers.

• There is also a lack of clarity and makes the law uncertain. It can make it hard for legal practitioners to advise their clients.

Re Sigsworth 1935

• A son murdered his mother for the purpose of gaining her estate.

• The mother did not have a will, so normally her estate would have gone to the next of kin according to the Administration of Justice Act 1926. This means that the murderous son would have inherited as her next of kin.

• The Golden Rule was applied as it led to an absurd outcome; he would have benefited from her death.

Adler v George 1964

• Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces “in the vicinity” of a prohibited place.

• The defendant was actually IN the place rather than in the vicinity when obstructing.

• The Golden Rule was upheld, it would be absurd for someone to be liable if they were near a prohibited place and not if they were actually in it.

The Mischief Rule

• The definition of this rule comes from Heydon’s Case 1584, where it said there are 4 points a court should consider

• What was the common law before an Act?

• What was the mischief and the defect for which the common law did not provide?

• What was the remedy Parliament used to cure it?

• The true reason for remedy

It looks at what the old law was before an Act to discover the mischief or the gap in the law.

Smith v Hughes 1960

• Under the Street Offences Act 1959it was an offence for a common prostitute to solicit customers from the street or a public place

• In this case 6 women were appealing against their convictions.

• They were not actually on the street, but either on their balconies or tapping on their windows attracting men as they walked along.

• Using the Mischief Rule, the judge decided that the aim of the act was to enable people to walk along the street without being solicited and therefore they were guilty.

Royal College of Nursing v DHSS 1981

• Under section 1 of the Abortion Act 1967 it provided that a pregnancy should be ‘terminated by a registered medical practitioner.’

• Due to advances in medical technology it meant that abortions could be induced by drugs. The first part by a doctor and the second part by a nurse without a doctor.

• The court had to decide whether the procedure was lawful under the abortion act as nurses were not considered as medical practitioners.

• The House of Lords argued that nurses could be regarded as medical practitioners for the purposes of the law as it was meant to outlaw back-street abortions and to provide a safe clinical environment for women.

Advantages of the Mischief Rule

• It promotes the purpose of the law as judges are allowed to look at the gap in the law. This is more likely to provide a just outcome.

• The Law Commission prefers the Mischief Rule, and as long ago as 1969, recommended that it should be the only rule used in statutory interpretation.

Disadvantages of the Mischief Rule

• It may lead to uncertainty in the law which makes it hard for lawyers to advise their clients.

• There is the risk that judges are filling in the gaps with their own views on how the law should be shaped

• It is not as wide as the purposive approach as it is limited to looking back at the gap in the old law and cannot be used for a more general consideration of the purpose of the law

• The split decision of the Law Lords in the case of RCN v DHSS 1981 shows that even senior judges do not always agree on the use of the mischief rule.

The Purposive Approach

• This is in complete contrast to the Literal Rule and goes beyond the mischief rule.

• The judges are deciding what they believe Parliament meant to achieve and giving effect to that purpose.

Jones v Tower Boot Co Ltd 1977

• Jones worked for Tower Boot Co as a machine operative for one month, During his time, he was subjected to racial, physical and verbal abuse.

• He then took out a claim for compensation against his employers, but they said what happened was not in the ‘course of employment’ as most of the harassment was in their break times and therefore not liable.

• However, the court disagreed with this approach as they said the purpose of the Race Relations Act 1976 was to ensure that this type of discrimination should not take place at all.

• The courts found that the company was liable.

R (Quintavalle) v Secretary of State for Health 2003

• The House of Lords used the Purposive Approach in deciding that organisms created by CNR came within the definition of ‘embryo’ in the Human Embryology and Fertilisation Act 1990.

• It states that an embryo is a live human embryo where fertilisation is complete: CNR was not possible in 1990 when the act was passed and the problem is that fertilisation is not used in CNR.

• Lord Bingham said ‘‘Parliament could not have intended to distinguish between embryos produced by or without fertilisation since it was unaware of the latter.

Advantages of the Purposive Approach

• Justice is served as seen from both cases.

• The law can keep up to date with advancements in technology, as seen in RCN v DHSS 1981

• Judges can fill in gaps in the law left by Parliament or dealing with new situations.

Disadvantages of the Purposive Approach

• It is undemocratic as judges are interpreting laws in a way they consider Parliament meant, and judges are not accountable for the decisions they make in court.

• It may be time consuming to find Parliament’s true intentions. Hansard and government statements need to be studied.

• Litigation is notoriously expensive and uncertain. Legal advice is difficult as lawyers will not know until the final judgement whether the judges are prepared to use this approach.

Intrinsic Aids

• These are things within the statute that a judge can use to help them with interpretation of the law. These include:

• Long Ttitle

• Short Ttitle

• Preamble

• Explanatory Notes

• Interpretation Sections

• Other Sections in an Act

Extrinsic Aids

• These are items outside of the statute that may help a judge to find the meaning of the words in an act. These include:

• Any relevant pre-legislative documents such as white/ green papers etc.

• Any dictionaries that were used at the time of the Statute.

• International Treaties and Conventions.

• Relevant Academic Books.

• Explanatory Notes.

• Previous Acts of Parliament that are relevant.

• Hansard.

• The Law Commission.

• The Interpretation Act 1978.

Hansard

• This is the official report of what was said in Parliament when the act was debated.

• In Pepper v Hart 1993, the House of Lords relaxed the previous rule that courts could not look at what was said in Parliamentary debates and accepted that it could be used in a limited way.

• Hansard can be used now but only where the words of an Act are ambiguous or obscure or lead to an absurdity.

Report of law reform bodies and The Law Commission

• Reports by law reform agencies, including The Law Commission, used to not be considered by judges.

• However, this rule was relaxed in the Black Clawson case in 1975, when it was accepted that such a report should be looked at to discover the mischief or gap in the law that the legislation based on the report was designed to deal with.

The Interpretation Act 1978

• This Act provides a definition of certain words that are frequently used in legislation e.g:

• Land includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude, or right in any or over land

• Month means calendar month

• Words importing masculine gender include the feminine and vice versa

• Words in the singular include the plural and vice versa (unless the contrary can be shown).

International Treaties and Conventions

• In Fothergill v Monarch Airlines Ltd 1980, the House of Lords decided that an international convention should be considered, as it was possible that in translating and adapting the convention to the legislative process, the true meaning of the original might have been lost.

• The House of Lords in that same case also held that an English court could consider any preparatory materials or explanatory notes published with an international convention.

• The reasoning behind this was that other countries allowed the use of such material (known as travaux preparatoires), and the UK judiciary should also be allowed to do so, for consistent international interpretation.

Laroche v Spirit of Adventure (UK) Ltd 2009

• The claimant had been injured as a result of a sudden landing in which he was travelling.

• The meaning of the word ‘aircraft’ was important. They had to look at if the definition of ‘aircraft’ had a hot air balloon included. If it did, the claim would have failed anyway as it had not been made within two years of the accident.

• In deciding the case the Court of Appeal first looked at the definition of ‘aircraft as ‘aeroplane(s), airship(s), and balloon(s)’

• The Court also looked at the Air Navigation Order 2000 and it supported the view that a hot air balloon should be regarded as an ‘aircraft’.

• In addition, the court pointed out that the English Law had to be interpreted in a similar way to international carriage by air which is ruled by an international convention, the Warsaw Convention.

The effect of the Human Rights Act 1998 on Statutory Interpretation

• Section 3 of the Human Rights Act 1998 states that, so far as it is possible to do, legislation must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights.

• This rule should apply at ALL TIMES and is the most important act to ever be created.

Godin- Mendoza v Ghaidan 2002

• Facts: The Rent Act applied where a person who had the tenancy of a property died.

• It allowed unmarried couples to succeed to tenancy as it stated that ‘a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.’

• The question was whether same sex couples had the right to take over a tenancy. A previous House of Lords decision made before the HRA ruled that same sex couples did not have the right under the Rent Act to take over the tenancy.

• Ratio: They were allowed to take over the tenancy as the HRA allows for same sex couples to succeed tenancy.

How did the UK courts confirm EU supremacy in the case of Factortame

• UK Courts & EU Supremacy: UK courts confirmed EU supremacy. Factortame challenged UK fishing laws under EU law. Court of Justice of the EU ruled that national courts must set aside conflicting national laws to uphold EU law. Established EU law as superior to national law.

Corkery v Carpenter 1951

• Shane corkery was sentenced to a months imprisonment for being drunk in charge of a bicycle.

• At about 2.45pm on January 18th, 1950, the defendant was drunk and was pushing his pedal bicycle along Broad Street in Ilfracombe.

• He was subsequently charged under Section 12 of the Licensing Act 1872 with being drunk in charge of a carriage.

• The act made no references to bicycles.

• The court elected to use the mischief rule to decide the matter.

The purpose of the act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication.