Law Making: Statutory Interpretation

Why is Statutory Interpretation used?

Judges need to interpret the law and assign meanings to the terms used

Reasons for SI: Broad Terms

Such as "type" in (Dangerous Dogs Act 1991) as interpretated in (Brock V DPP)

Reasons for SI: Ambiguity

some words have more than one meaning

Reasons for SI: Drafting errors

(Offences Against the Person Act 1861) s20 refers to "inflict" S18 refers to "cause" the case of (R V Burstow) interpret with the same meaning

Reasons for SI: New Developments

The process of abortions change: (Royal College of nursing V DHSS)

Reasons for SI: Changes in language

The meaning pf words will change over time (DPP V Cheeseman)

How do Judges interpret the law?

Judges choose which of the three rules (literal, golden (narrow/wide) or mischief) they may also use the purposive approach

What is the literal rule?

Oldest rule; the judges just apply the literal meaning of the words of the act

How did Lord Esher explain the Literal Rule?

(R V City of London Court Judge)
"If the words of an act are clear you must follow them even though they lead to manifest absurdity."

What's an example of the Literal Rule?

No compensation for no spotter when "maintaining/oiling" track is not "repairing/relaying"
(London and North Eastern Railway Co V Berriman)

How does the literal rule respect parliamentary soverignty?

Over Judicial discretion. Parliament democratic law body, prevents unelected judges from making law.

How does the literal rule make the law certain?

Interpreted exactly as written, easier for lawyers and the public to know the law

How does the literal rule focuses the mind of the Parliamentary Counsel to the Treasury?

Forcing them to be clear in their language

How does the Literal Rule respect the separation of powers?

Judges have minimal or no legislative function

Why is it a disadvantage of the Literal Rule if it assumes every act is carefully drafted?

Dangerous Dogs Act 1991, Parliament used the word "type" not "breed"

Where has it been seen that the literal rule is not always possible to cover every situation?

(Whitely V Chappell) Impersonating deceased and voting

Why is it a disadvantage that words may have more than one meaning in the Literal Rule?

Professor Zander has said its "divorced" from the realities of language

How is it a disadvantage that unjust or harsh decisions are made through the Literal Rule?

(London and North Eastern Railway Co V Berriman) Purpose of the law is to protect those working on the railway

How does the Literal Rule expect unrealistic perfection from the Parliamentary Counsel to the Treasury?

Wording by draftsmen and foresight of how Act will cover every future situation.

How many approaches is there for the Golden Rule?

Narrow and wide (aka public policy approach)

How did Lord Reid explain the narrow approach?

"If the words are capable of more than one meaning then you can choose between them"
(Jones V DPP)

What is an example of the golden rule narrow approach?

"in the vicinity" were interpreted to include "inside of"
(Adler V George)

What is the wide approach of The Golden Approach?

Where the meaning is clear but leads to an absurdity or repugnant the court can modify the words in the act

What is an example of the wide approach of The Golden Approach?

Courts added the condition that where a person kills to inherit they cannot inherit
(Re: Sigworth)

How does the Golden rule respect the exact words used?

Except in limited situations

How does the Golden rule choose the most sensible outcome?

-Narrow approach allows judges to choose the most sensible meaning
-Wide approach can provide sensible decisions in cases where the literal rule would lead to a repugnant situation

Why is it a disadvantage that the Golden Rule is used on rare occasions?

Not always possible to foresee when a judge will use this rule

What does Michael Zander describe the rule as?

"feeable parachute"

Why is a disadvantage that through the Golden Rule judges can change the meaning of statute?

It is undemocratic and goes against the principle of the separation of powers, judges meant to interpret not make or change the law

Why is a disadvantage that absurd is a subjective concept?

Inconsistent interpretations of the law

What is the mischief rule?

The courts look to see what the mischief is (what was Parliament trying to stop) and then interpret the law to try and stop it

What is Heydon's case 1584?

Heydon's case 1584 is a legal case that introduced a set of criteria to interpret statutes.

What is the first criteria from Heydon's case 1584?

The first criteria is to consider what the common law was before the Act in question.

What is the second criteria from Heydon's case 1584?

The second criteria is to identify the mischief or gap that the common law did not cover.

What is the third criteria from Heydon's case 1584?

The third criteria is to determine the remedy that Parliament intended to provide.

What is the fourth criteria from Heydon's case 1584?

The fourth criteria is to understand the reason behind the remedy being proposed.

What is an example of the mischief rule?

The Abortion Act 1967 stated only "medical practitioners" could perform abortions but nurses could assist as the mischief was unsafe abortions (Royal College of Nursing V DHSS)

How does the Mischief rule promotes the purpose of the law?

The unintended gaps in the law can be remedied which is more likely to produce a "Just" result

What has the Law Commission said about the Mischief Rule?

That they prefer it and said it should be the only rule used

What does it mean if there is a risk of judicial law making in the Mischief Rule?

It means that it does not respect the separation of powers as the Judiciary shouldnt be making law

Why is it a disadvantage if the Mischief Rule leads to uncertainty?

It does not respect the purpose of the law which is it should be ascertainable and it makes legal advice difficult

Where was it seen that its a disadvantage if judges don't always agree in the mischief rule?

The split decision of the Lords in Royal College of Nursing V DHSS Senior Judges

Why is it a disadvantage if the mischief rule is not as wide as the purposive approach?

Because mischief has to be identified and the mischief rule limited to looking back at the gap in the old law therefore cannot be used for a more general consideration

What is the Purposive Approach and how is it different to the mischief rule?

Judges look for Parliaments intention and try to apply it-rather than looking for mischief

How did Lord Denning explain the Purposive Approach?

"We sit here to find out the intentions of Parliament and ministers and carry it out"
(Magnor and St Mellons Rural District Council V Newport Corporation)

What is an example of the Purposive Approach?

Parliament could not have intended to promote serious crime
(R V Registrar General Ex Parte Smith)

How is it an advantage that through the Purposive Approach the law can keep up to date with advancements?

Judges can take account of new technology introduced after the passing of the act

Why is it an advantage that through the Purposive Approach the courts have flexibility?

They can ensure that just results are achieved

Why is it an advantage that through the Purposive Approach judges can look for Parliaments intention?

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

Why is the Purposive Approach argued to be undemocratic?

If Judges are interpretating laws in a way they consider Parliament meant it- this may not always be clear and Judges are not accountable for discission's made

Why is the Purposive Approach argued to be time consuming and expensive?

Hansard and Government statements have to be studied

Why is it a disadvantage that the Purposive Approach creates uncertainty?

Lawyers will not know how the law will be interpreted until the end of the trial?

What does Lord Scarman say about the Purposive Approach?

"If Parliament says one thing but means another, It is not, under the historic principles of the common law for the courts to correct it"

Aids to Interpretation: Intrinsic Aids

-Long title, short title and pre-amble
-Headings
-Schedules
-Marginal Notes
-Interpretation Sections

Aids to Interpretation: Extrinsic Aids

-Green/White Papers
-Trauvaux Prepartories
-Previous acts on the same topic
-Dictionaries (Cheeseman v DPP)
-Hansard (Pepper v Hart)
-Law Commission Reports