statutory interpretation

What is the literal rule

The judge gives the words contained in the statute their ordinary meaning, even if this causes an absurd result

Case example of the literal rule

Whitley v Chappel - a dead person is no longer entitled to vote

Advantages of the literal rule

• Upholds the separation of powers as the role of the judge is to apply the law

• Creates certainty in the law - allows lawyers to advise their clients with accuracy - rule of law, the law should be ascertainable

Disadvantages of the literal rule

• Assumes legislation is drafted perfectly with no mistakes

• Can lead to absurd outcomes - Whitley v Chappell

• Prioritises certainty over fairness - London & North East Railway v Berriman

• Doesn’t take into account that words have more than one meaning

What is the golden rule

If the literal rule causes an absurd result the judge can take a more flexible approach (narrow or wide)

Case example for the golden rule

Adler v George - ‘in the vicinity of’ includes within & around the prohibited place

What is the narrow view & case example

Where a word has more than one possible meaning, the court can choose the most suitable one to avoid absurdity

R v Allen

What is the wide view & case example

Where the words have only one clear meaning but that would lead to an absurd outcome, the courts can modify the meaning of the words to avoid this

Re Sigsworth - no longer considered ‘next of kin’ if they have murdered the deceased

Advantages of the golden rule

• Respects the exact words of parliament except in limited situations - avoids judges making laws

• Narrow view upholds the sovereignty of parliament

• Avoids outcomes that parliament would not have intended - Whitley v Chappell

Disadvantages of the golden rule

• Makes the law uncertain, its not always predictable when the courts will use the golden rule & this depends on what the courts consider absurd

• Hard for lawyers to advise their clients on potential outcomes of cases

What is the mischief rule & what case was this created in

Laid down in Heydon’s case, the judge looks for the mischief the statute was passed to remedy

What was stated in Heydon’s case

4 things must be considered when using the mischief rule:

1. What was the common law before the making of the Act

2. What was the mischief & defect for which the common law did not provide

3. What remedy did parliament appoint

4. The true reason of the remedy

Case example for the mischief rule

Smith v Hughes - soliciting from a private place, not public

Held: guilty because the Street Offences Act 1959 was seeking to remedy people being bothered s they walked along the street

Elliot v Grey - even though the car couldn’t be used it was still a hazard to other road users

Advantages of the mischief rule

• Produces more just outcomes

• Promotes the aim of the law passed by parliament - their wishes are more likely to be achieved then using the literal rule - upholds sovereignty

• Flexible - judges are not confined to the literal meaning of the act

Disadvantages of the mischief rule

• Leads to judicial law making because judges are applying their own view of what parliament intended - undemocratic as judges are not elected

• Causes uncertainty - difficult for lawyers to advise their clients on the outcome of a case

What is the purpose approach

Judges look for the aim or purpose of the act

What was stated in Pepper v Hart

The courts now adapt a purposive approach which seeks to give affect to the true purpose of legislation

This shows that the purposive approach is used to interpret domestic law, as well as European law

Case example of the purpose approach

Jones v Tower Boot Company - parliaments intention in the Race Relations Act 1976 was to eliminate discrimination in the workplace

Magor & St Mellons rural district council v Newport corporation

Advantages of the purposive approach

• Allows judges to cover more situations than if the words were taken literally, or just the mischief rule was used

• Gives affect to the true intentions of parliament - respects sovereignty & the separation of powers

• Allows the law to be adapted to work with advances in tech - law kept up to date

Disadvantages of the purposive approach

• Can be difficult to find parliaments true intentions - many argue the only reliable way to find this out is to look at the statute as Hansard is not always reliable

• Unelected judges are ‘making’ the law instead of using parliaments words - goes against sovereignty & separation of powers

• Can be difficult to find the outcome of a case as it depends on what judges think the purpose of the Act was - makes it difficult for lawyers to advise their clients on the outcome of a case

Creates uncertainty