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THE EU & UK

The EC - the culmination/evolution of the early communities of the 50's (ECSC, EURATOM and the EEC) - forms part of the EU but must be distinguished from the EU.



The UK's ascension to the EC in 1973 and the incorporation of EC law into domestic UK law certainly pose an interesting challenge to the traditional doctrine of parliamentary or legislative sovereignty/supremacy given the reality of the dominance of EC law over domestic law in the relevant areas (including, the creation of the common market, the free movement of capital, persons, good and services, and now immigration and asylum too) where member states by signing the treaty have surrendered a limited part of their sovereignty and created a new body of law - a unique legal order - binding themselves and their individual citizens. (Van Gend en Loos; Costa v Enel).



But this has little to do with the EU and its treaties, which are part of the body of international law; thus giving member states a wide discretion whether or not to co-operate, voluntarily, in areas of EU competency, namely, common security & foreign policies and cooperation in policing & criminal justice affairs. So it is clear that law of the EU proper- which is the umbrella body that includes the EC - has no dominance over the UK (law).



A cursory look at the EC's jurisprudence - from Van Gend en Loos and Costa through ERTA (1971), Internationale Handelsgesselschaft, Simmenthal, Haim (2000), Francovich...to Factotame (2) - clearly reveals the supremacy of EC law over UK law. The ECJ with its teleological style of interpretation has astonishingly stamped its (i.e. EC law) supremacy on member states to the point that the ECJ will fine member states for failure to implement EC measures (Francovich); even fine their parliaments! (Haim); member states cannot enter into international agreements in areas of EC jurisdiction (ERTA); even the lowest court of any member state can set aside domestic law that conflicts with EC law - even domestic constitutional law (Internationale Handelsgesselschaft, Simmenthal), including in the event of doubt pending an ECJ ruling to clarify that doubt!!! (Factortame). This is awesome-supremacy of EC law over domestic law of member states.



One can't but admire the ability and craftiness of the UK judges to 'defend' the conventional - common law - doctrine/rule of parliamentary supremacy in the face of all this sound evidence and reality. They're good; probably the best judges in the world. Their stance is that the European Community Act 1972 that brought EC law into domestic UK law is an ordinary (as contrasted with fundamental or constitutional) act of parliament and can, theoretically at least, be repealed at any time by one stroke of the UK parliament's pen, subject only to political, moral and other practical inhibitions of course. Isn't that an extremely unrealistic stance? [Can sovereignty really be dissected into legal and political in the way Equity has dissected property into legal, equitable - and even equitable and beneficial - ownerships to create (the world/law of) trusts? There's a well established and respected school of thought - of course - that sovereignty minus part or limited sovereignty equals no sovereignty. In other words, it’s a contradiction of terms to speak of part sovereignty. This goes to say that if parliament (or the judges) carve out for themselves legal sovereignty from the Peoples' Sovereignty to use for the sole pleasure of parliament; it’s a contradiction of terms to continue to speak about legal or political sovereignty. This contradiction is further exposed when one consider that under this doctrine of parliamentary/legal sovereignty parliament can't pass any law, the effect of which will, bind itself, limit its sovereignty, or elevate the status of the court from subordinate to a true constitutional court with powers to rule on the validity of statutes. That's surely a legal ristriction as far as it relates to legislation on any subject matter.] Additionally, according to the judges, by s.3 of ECA 1972 the UK parliament empowered UK judges to sit - not as a UK court but - as a court exercising EC jurisdiction when dealing with 'matters of law' involving EC law conflict.



UK courts have always had many jurisdictions - Criminal, Admiralty, Family, Coroners, etc - but that does not make them non-UK courts or make their judges foreign. A UK court with an EC jurisdiction is still a UK court and its judge is a person/body. Furthermore Dicey 3rd condition of sovereignty stated that no court or body [whatsoever or where so ever on the face of this earth] can question the validity of an act of the UK parliament. Presently the UK court - and judges - with an EC jurisdiction can do just that and of course the ECJ too. I've already stated above that a 'sovereign' parliament is not free to pass any law the effect of which will elevate the status of the Court to constitutional.



The doctrine of sovereignty defiantly lives on solely because the UK judges, who created it, continue to pay great respect to it and defend it from air, land, sea and space. This brings to my mind the respect paid to the immunity of husbands from persecution for non-consensual sexual intercourse with their wives until R v R! This, Shawnda, summarizes and exposes the real power, linguistic skill and craftiness of the UK judges (as they continue to develop the common law 'over' statutes) to conveniently defend any common law doctrine until the time and politics is right to ditch it.

STATUTORY INTERPRETATION - SUMMARISED ESSAY

There are two essays on statutory interpretation. The "Main Essay" is more detailed while the "Summarised Essay" is concise but did not leave out the key issues. This is the kind of skill you need to develop while preparing for your examinations. I will advise you to read the two and compare.

INTRODUCTION

Statutes historically comprised a small portion of the law in the English legal system. Until 1960, it was felt that judges often share an altitude of mistrust or even fear of statute law. One attempt was to interpret the statutes in a narrow and literal form, thus ensuring the scope of the statute was kept as narrow as possible. The situation has now change, commentators now talk of purposive approach to interpretation. There are problems in drafting statutes for example, in rationalising the offence of burglary under the Theft Act 1968, a person is guilty of burglary when he or she enters a ‘building’ as a trespasser, in order to commit theft or certain other offences. The word ‘building’ has subsequently been interpreted by the courts at various times as being a houseboat, a caravan and even a large commercial refrigerator in addition to houses, warehouses factories or shop. A number of factors such as refrain from using certain words, broad terms with wide meaning are often used, changes in the meaning of statutory expression deliberate uncertainty for some contentious political issues, inadequate use of words, printing errors and drafting errors may cause doubt in interpreting a statutory provision. In interpreting statutes the

The general methods of statutory interpretation are not regulated by parliament, but have been developed by the Judges. The Interpretation Act 1978 does not provide notes for interpretation but simply provides standard definitions of common provision. In the name of judicial independence and keeping faith to the law alone, many judges have preferred strictly literal approach and have denied the need to consider policy matters. In Pepper (Inspector of Taxes) v Hart (1993) AC 591the House of Lords departed from the long established practice that prohibited reference to Hansard (the record of debates in Parliament).

 

Basically there are three approaches to statutory interpretation. These are the Literal, Golden and Mischief Rule. A general purposive approach is also operative – each rule originated in different stage of legal history and these are not really ‘rules’ but approaches to interpretation. Most recently Sir Rupert Cross has suggested that the English approach involves a progressive analysis rather than a choice among alternative rules. The Judge first consider the ordinary meaning of words in general context of statute then moves in to consider other possibilities where ordinary meanings leads to absurd result. This is known as the unified contextual approach and is supported by dicta in the House of Lord decisions. In case of doubt or difficulty judges often say it is necessary to discover the ‘intention of the parliament’ (this is the purposive approach)

 

THE LITERAL RULE

The literal rule states that the words used in statute must be given their plain, ordinary or literal meaning. The literal rule is the most clearly restrictive of the ‘rules’ it is in a sense conservative. It is also a kind of professional politics reflecting the historical desire of the judges to defend common law against encroachment. Sometimes it clearly seems that the judges want to show that Parliament creates stupidities in the law when it over legislates. Thus in 1884 Lord Bramnwell said that if Parliament created such absurdities then it was the job of the Parliament to alter the words and not the courts. In Whitely v Chappel (1868) 1 WLR 565 - the statute made it an offence for anyone during election to impersonate another person who was entitled to vote. The defendant impersonated a dead person and the court found him not guilty since it used the narrow literal rule because a dead person was not entitled to vote. Also in R v Harris (1836) the statute makes it an offence to stab, cut or wound another person. Harris bit off his friends’ nose in a fight and the policeman’s finger. She was not guilty as the teeth were not considered a weapon. In Griffith v Secretary of State for Environment (1983) 2 WLR 172) the legislation gave six weeks to appeal against Secretary of State’s refusal to grant planning permission. The refusal of plaintiff’s request was not conveyed to him. The House of Lords held that the correct date was the moment a civil servant had date-stamped the decision even though the letter was never sent, and the plaintiff did not know of the decision. The Literal Rules implies that it must be applied even if the result is absurd.

 THE GOLDEN RULE

 Sometimes you may find the golden rule expressed as Lord Wensleydale’s golden rule. In essence the rule states that literal approach should be followed until it produces absurdity. The controversial aspect of the rule is the unresolved questions – whether it could only apply where words were ambiguous or whether it could only apply where meaning were clear but absurd. There are other problems with absurd such as does it mean inconsistent with other provisions in the same act or absurd for other reason. The 1969 Law Commission said that the rule provides no clear means to text absurdity and did not favour it.

THE MISCHIEF RULE

The Mischief rule approach intends to find the cure what the common law before the making of the act, the mischief and defect for which the common law did not provide, and the remedy the parliament has resolved and appointed to cure the disease of the commonwealth. The office of the judge is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add forces and life to the cure and remedy according to the true makers of the Act, pro bono publico. The rule is rule is the oldest of the rules dating from a time when the judges had much influence over the contents of the act and where the position of the parliament was not as powerful as it is today. The mischief rule does not allow the court to re-write the Act. Smith v Hughes (1960) 2 All ER 859) A prostitute taping the window soliciting for customer was not contravening Street Offences Act 1959. The rule was however considered outdated in view of the fact that it assume that statute is a subsidiary or supplement to the common law, where in modern conditions, many statutes make a fresh point of departure.

PURPOSIVE

The purposive 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. There is no need to wait for absurdity before the judge begins to operate in this way and no need to consider existing common law. This approach is sometime criticised as an attempt by the court to usurp the power of the parliament.

This approach calls for the Judge must give effect to the (grammatical and) ordinary or where appropriate the technical meaning of words in the general context of the statutes. If the judge considers the application of words in their ordinary sense would produce a result which is contrary to the purpose of the status, he may apply them in any secondary meaning which they are capable of bearing. The judge may read up words which he considers to be necessary implied but he has a limited power to add, to alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable, and so totally irreconcilable with the rest of the state. In apply the above rules the judge may resort to certain aids to construction and presumption. The Judge must interpret a status as to give effect directly applicable European law. This approach may be seen as combination of purposive approach to interpretation and changing constitutional position in light of the UK’s entry into the EU and the advent of Human Rights Act.

EFFECT OF EC

The accession of the United Kingdom to the European Communities Act 1972 has radically altered the standing of parliamentary sovereignty. All UK legislation must be interpreted to avoid conflict with European Law. The Human Rights Act presents a new chapter to construe legislation as to make it as far as possible in line with the HRA, if not to declare it as incompatible. The court may merely issue a ‘declaration of incompatibility’ which gives rise to a power to take remedial action. For example the House of Lords held that Youth Justice and Criminal Evidence Act 1999 s.41 should be interpreted so that it is compatible with article 6(1) Right to Fair Trial) even though a literal interpretation would indicate that complainants must be protected in court from questions concerning their sexual history when they alleged rape. In addition the HRA gives the Court of Appeal the latitude to effective overruled its decision which were decided before HRA came into effect Fitzpatrick v Sterling Housing Association HRA was used to extend the right of same sex partners to inherit statutory tenancy under the Rent Act 1977.

CONCLUSION

Many commentators are of the view that there are no rigid rules to statutory interpretation but a combination of approaches which judges uses in arriving at decisions. There appear to be the collapse of the literal, the golden and mischief rule into one since what could be referred to as the purposive or unified contextual approach to interpretation. To arrive at proper meanings of words in a statute the judge may look at dictionaries, the definition section of the Act (if any) and previous cases decided on the meaning of similar words. Today it is more useful that ‘the meaning of words used in any act must be found by reading the whole of the Act in question.

There are other secondary aids such as whole context of the Act; text of any delegated legislation under the authority of the act of the parliament; Judicial precedents directly binding upon the text to be applied or other relevant parts of the same statute and Treaties binding in the UK by virtue of enabling act. Examples of persuasive authority e.g. legal sources, Chandler v DPP (1964) AC at p. 791. Lord Reid invoked the historical conditions of the passing of the Official Secret Acts, 1911 to support his interpretation of the Act. Usually only legal sources are permissible and not textbooks. Government publications Pepper v Hart (1993) limited recourse to Hansard, Interpretation Act since 1889 the more recent version enacted in 1978.

UNDERGRADUATE LAW SUBJECTS

REVISION SERIES

                                                                              

SUBJECT: COMMON LAW REASONING AND INSTITUTIONS

There are two essays on statutory interpretation.  The "Main Essay"  is more detailed while the "Summarised Essay" is concise but did not leave out the key issues.  This is the kind of skill you need to develop while preparing for your examinations.  I will advise you to read the two and compare.

STATUTORY INTERPRETATION -MAIN ESSAY

INTRODUCTION

Statutes historically comprised a small portion of the law in the English legal system. Joining living tradition, student experience activity being one of grasping language, learning knowledge claims or statements and focussed on the Inns of England. The rules of presumption on statutory interpretation adopted in England owe their unique character to the changing constitutional balance between King, Parliament and senior judges. Law making was a marginal activity of parliament and consisted largely of private members bills on criminal matter and enclosure law. Law was thought as the criminal matters and statutes as ‘marginal adjustment to the reigning state of affairs (Atiyah – the Rise and Fall of Freedom of Contract). The governing idea for the judiciary for many years was that it was best to leave the common law alone and that statutes were not to be passed unless absolute necessary and legislation was to be interpreted strictly. Until 1960, it was felt that judges often share an altitude of mistrust or even fear of statute law. One attempt was to interpret the statutes in a narrow and literal form, thus ensuring the scope of the statute was kept as narrow as possible. The situation has now change, commentators now talk of purposive approach to interpretation and the age of literal interpretation may have ended in the late 1960s. The Human Rights Act presents a new chapter to construe legislation as to make it as far as possible in line with the Human Rights Act (HRA), if not to declare it as incompatible. R v Harris the defendant bit the nose of the victim, he was not held under the act because teeth were not considered a dangerous weapon. Unified contextual approach, the Learning legal rules is extremely valuable here; this is the core skill that first year students need to grasp.

STATUTORY INTERPRETATION IN THE ENGLISH LEGAL SYSTEM

The largest transnational influence upon the English legal system has resulted from the United Kingdom joining the European Community/European Union. Under the European Communities Act (ECA) 1972 any United Kingdom enactment has effect subject to existing enforceable community rights

Statutes are fundamental sources of law.  In contrast to case law, the statute is both the source and the statement of the law.   There are problems in drafting statutes for example, in rationalising the offence of burglary under the Theft Act 1968, a person is guilty of burglary when he or she enters a ‘building’ as a trespasser, in order to commit theft or certain other offences.  The word ‘building’ has subsequently been interpreted by the courts at various times as being a houseboat, a caravan and even a large commercial refrigerator in addition to houses, warehouses factories or shop. F. A. R. Bennion (1990) has identified a number of factors that may cause doubt in interpreting a statutory provision as follows: 

a)   Ellipsis: the drafter refraining from using certain words that be regards as implied automatically

b)   Broad terms with wide meaning are often use (e.g. vehicle clearly covers motor cars, buses, motor cycles)

c)   The meaning of statutory expression may change over time – e.g. does family include common law spouse, does father refers to biological or the social father

d)   Deliberate uncertainty.  Drafters may deliberate use ambiguous word e.g. where provision is politically contentious

e)   Unforseeable development

f)    Inadequate use of words

g)   Printing errors and drafting errors

APPROACHES TO INTERPRETATION 

The general methods of statutory interpretation are not regulated by parliament, but have been developed by the Judges. The Interpretation Act 1978 does not provide notes for interpretation but simply provides standard definitions of common provision. In the name of judicial independence and keeping faith to the law alone, many judges have preferred strictly literal approach and have denied the need to consider policy matters. In Pepper (Inspector of Taxes) v Hart (1993) AC 591 the House of Lords departed from the long established practice that prohibited reference to Hansard (the record of debates in Parliament).  T

THE RISE OF STATUTE LAW

In early times there were few statutes.  The bulk of the law was case law and statutes were of secondary importance. From the Tudor period onwards the parliament became more and more independent and the practice of law making by statute increase. Statutes did not become an important source of law until the beginning of the nineteen century. At present time, although there is a great deal of legislation, statute still forms a comparatively small part of the law as a whole. Since the late 18^th Century the doctrine of parliamentary supremacy has been accepted. The idea of Parliament as an absolutely sovereign legislature relies upon two understandings:

a)   That no parliament can bind a future parliament or be bound by previous one

b)   That no Judge can condemn a law and refuse to apply it on the ground that it is incompatible with the constitution or the fundamental principles of the common law.  That would be a usurpation of the legislative function by the Judiciary.

The Judiciary will not simply apply statutes.  They have adopted methods of relating to statutes that have preserved the power of the judiciary as the oracle of the law

APPROACHES TO STATUTORY INTERPRETATION

There is a large discretion in how to interpret, and as a result is there such a radical choice that the result of chaos of interpreting.  Or can we make sense of the situation through some process of rational reconstruction of what happens in practice? Bennion’s statutory Interpretation (1997)  ‘Alas there is no golden rule.  Nor is there mischief rule, or a literal rule, or any other cure-all rule.  Instead there are thousand and one interpretative criteria.  Fortunately. Not all these present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance

A PROCESS MODEL OF UNDERSTANDING THE INTERPRETATION OF STATUTES

A process model incorporates the constitutional position with an understanding of how certain ‘rules of interpretation’ can be rationally connected.  We shall examine the following:

The Basic Rules

a)   There are no limit upon the power of Parliament to make law

b)   Judges must always give effect to the intention of the parliament

c)   Interpretation should start with the presumption that one should apply to ordinary, ‘literal’ meaning of the words of Parliament has used

Solutions to the problems

a)   Look for the ‘spirit of the Act’

b)   Read words ‘in context’

c)   Use as wide context as need be

There may be dangers in these solutions e.g.

a)   There may be disagreement as the ‘spirit of the Act’

b)   Widening the context may solve some problems, but may also raise new ones on their place

c)   The judge is in danger of acting as a legislator, using Parliament’s words only as a starting point

d)   Parliament complains that Judges are sabotaging its legislation by failing to use the literal meaning of its words.

Approaches to Statutory interpretation in English Law: and Outline 

Basically there are three approaches to statutory interpretation.  These are the  Literal, Golden and Mischief Rule. A general purposive approach is also operative –  each rule originated in different stage of legal history and these are not really ‘rules’ but approaches to interpretation. The ‘classic’ modern account of the role of these ‘rules’ was given in 1938 by J. Willis in an article entitled ‘Statutory Interpretation in a nutshell (16 Can Bar Rev 1). Most recently Sir Rupert Cross has suggested that the English approach involves a progressive analysis rather than a choice among alternative rules.  The Judge first consider the ordinary meaning of words in general context of statute then moves in to consider other possibilities where ordinary meanings leads to absurd result. This is known as the unified contextual approach and is supported by dicta in the House of Lord decisions. In case of doubt or difficulty judges often say it is necessary to discover the ‘intention of the parliament’ (this is the purposive approach)

THE LITERAL RULE

The literal rule states that the words used in statute must be given their plain, ordinary or literal meaning. The literal rule encourages precision in drafting and likely to produce result closest to the meaning intended by Parliament. It avoids the danger of statutes being effectively re-written by judges.

Criticisms of the Literal Rule

Judges have excessively emphasised the literal meaning of statutory provisions without giving due weight to their meaning in wider context. The literal rule is the most clearly restrictive of the ‘rules’ it is in a sense conservative. It is also a kind of professional politics reflecting the historical desire of the judges to defend common law against encroachment. 1982 Lord Esher said in R v the Judge of the City of London Court (19892) 1 QB 273  that if the words a statutes were clear, they must be followed even if the result is not sensible, and even if it is absurd and unjust. Sometimes it clearly seems that the judges want to show that Parliament creates stupidities in the law when it over legislates.  Thus in 1884 Lord Bramnwell said that if Parliament created such absurdities then it was the job of the Parliament to alter the words and not the courts. In Whitelely v Chappel (1868) 1 WLR 565  - statute made it an offence for anyone during election to impersonate another person who was entitled to vote.  The defendant impersonated a dead person and the court found him not guilty since it used the narrow literal rule because a dead person was not entitled to vote. Griffith v Secretary of State for Environment (1983) 2 WLR 172) the legislation gave six weeks to appeal against Secretary of State’s refusal to grant planning permission.  The plaintiff had not been informed of that decision. The House of Lords held that the corrected date was the moment a civil servant had date-stamped the decision even though the letter was never sent, and the plaintiff did not know of the decision.  The Literal Rules implies that it must be applied even if the result is absurd, the judges dislike the statute and interpretation may inflict hardship on those affected. R v Maginnis (1987) 1 All ER 907 the defendant who friend left drugs in his car was convicted of unlawful possession of a controlled drug with intent to supply it to another. In order to arrive at proper meanings of words in a statute the judge may look at dictionaries, the definition section of the Act (if any) and previous cases decided on the meaning of similar words. Today it is more useful that ‘the meaning of words used in any act must be found by reading the whole of the Act in question.

THE GOLDEN RULE

Sometimes you may find the golden rule expressed as Lord Wensleydale’s golden rule. The words of Parke B (who became Lord Wensleydale) in the case of Becke v Smith (1836) 2 M&W 191  are often quoted: It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further. This interpretation was expressively adopted in the case of Mattison v Hart *1854) 15 CB 357. In essence it states that literal approach should be followed until it produces absurdity, In the USA it is often presented as the first of the rules. The controversial aspect of the rule is the unresolved questions – whether it could only apply where words were ambiguous or whether it could only apply where meaning were clear but absurd. There are other problems with absurd such as does it mean inconsistent with other provisions in the same act or absurd for other reason.  The 1969 Law Commission said that the rule provides no clear means to text absurdity and did not favour it.

 THE MISCHIEF RULE

Opinion of the Barons who decided Heydon’s Case (1584) 3Co Rep 7a -  What was the common law before the making of the act? What was the mischief and defect for which the common law did not provide? What remedy the parliament has resolved and appointed to cure the disease of the commonwealth? True reason for the remedy – The office of the judge is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add forces and life to the cure and remedy according to the true makers of the Act, pro bono publico.

The rule is rule is the oldest of the rules dating from a time when the judges had much influence over the contents of the act and where the position of the parliament was not as powerful as it is today.. The mischief rule does not allow the court to re-write the Act. Smith v Hughes (1960) 2 All ER 859; a prostitute taping the window soliciting for customer was not contravening Street Offences Act 1959

In 1969 the Law Commission commented on the Mischief Rule as follows  - … a somewhat more satisfactory approach to the interpretation of statutes, (but) it is somewhat outdated in its approach, because it assumes that statute is a subsidiary or supplement to the common law, whereas in modern conditions many statutes mark a fresh point of departure

THE RULES IN THEIR HISTORICAL CINTEXT

For most of the 20^th century the Literal Rule has been most widely used. The first step legal reasoning is to identify the relevant rule or principle that is applicable to the factual situation. The cultural background of a system is an important factor influencing the readiness of judges as to decide the applicability of rules of interpretation. The English legal system has not had either an extensive codification project nor seen a written constitution. Those common law systems where a written constitution is enacted such as the United States, particularly strategies for constitutional interpretation are often develop which, albeit somewhat different in purpose do influence approach to normal legislature. In both civil and common law system where there is a written constitution, there is a tendency to enact statutes that establish only general principles of law and delegate to various agencies the authority to adopt more specific regulations consistent with those more fundamental statues. There is always the argument that legislation out to be applied just as is its written down. Adherence to literal approach is often justified on the grounds of the separation of powers and democratic expectation

EVIDENCE BEYOND THE STATUTE

The Common law favours textualism, or the idea that the law is to be found by analysing legal text (either reports of previous case or the appropriate legislation). The traditional approach meant that courts were openly suspicious of arguments that they ascertain the meaning of the statutory words through using extrinsic source). Extrinsic source is a basic tension inherent in legal reasoning in this area. Seaford Courts Estates Ltd v Asher (1950) Lord Denning had argued that: ‘We sit here to find out the intention of Ministers and of Parliament and carry it out, we do this better by filling in the gaps and making sense if the enactment than by opening it up to destructive criticism. Viscount Simmonds said it appears to me a naked usurpation of the legislative function under the thin guise of interpretation .If a gap is discovered, the remedy lies in amending the act

The material that should be referred to could include whole context of the Act; Text of any delegated legislation under the authority of the act of the parliament; Judicial precedents directly binding upon the text to be applied or other relevant parts of the same statute and Treaties binding in the UK by virtue of enabling act. Examples of persuasive authority:

o   Historical background – Chandler v DPP (1964) AC at p. 791. Lord Reid invoked the historical conditions of the passing of the Official Secret Acts, 1911 to support his interpretation of the Act.  Usually only legal sources are permissible and not textbooks

o   Government publications – Reports of various law reform committees including Royal Commissions, proceedings of other parliamentary committees (since 1975), explanatory memoranda to bills since (1988) and since Pepper v Hart (1993) limited recourse to Hansard

o   Interpretation Act since 1889 the more recent version enacted in 1978.  The Interpretation Act provide more guidance for judges

The two attempts by Lord Scarman in 1980 to put legislature through Parliament in order to provide the courts with a wider range of aids to interpret statutes both failed

UNIFIED CONTEXTUAL APPROACH

In his leading short work on statutory interpretation Sir Rupert Cross (1976) third edition set out the following procedures Judges should follow:

a)   The Judge must give effect to the (grammatical and) ordinary or where appropriate the technical meaning of words in the general context of the statutes

b)   If the judge considers the application of words in their ordinary sense would produce a result which is contrary to the purpose of the status, he may apply them in any secondary meaning which they are capable of bearing

c)   The judge may read up words which he considers to be necessary implied but he has a limited power to add, to alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable, and so totally irreconcilable with the rest of the state

d)   In apply the above rules the judge may resort to certain aids to construction and presumptions

e)   The Judge must interpret a status as to give effect directly applicable European law

This approach may be seen as combination of purposive approach to interpretation and changing constitutional position in light of the UK’s entry into the EU and the advent of Human Rights Act.

PURPOSIVE APPROACH

The purposive 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.  There is no need to wait for absurdity before the judge begins to operate in this way and no need to consider existing common law. A clear statement on this approach comes from Denning LJ in Seaford Court Estates Ltd v Asher (1950) 2 All ER 1236 (see 6.3.1. above). Lord Denning’s Approach was severely criticised.  Viscount Simmonds in Magor & St Mellons RDC v Newport Corporation (1952) AC 189 said in Denning LJ’s views are naked usurpation of the legislative function. In 1980 Lord Scarman said in a lecture that ‘on-one’ would dare to choose the literal rather than a purposive construction’ of a statute. Although judges frequently refer to the concept of purposive statutory construction, this approach should be used carefully and in any case will often produce the same result as literal interpretation. Mandla v Dowell Lee:  A case study of differing interpretations. Courts were sharply divided on the application of statute, the Race Act. In Mandla v Dowell Lee, the Court of Appeal and House of Lords differed markedly not only of the interpretation of the ‘ethnic’ in the context of Sikhs in Britain but in their attitude to the legislation and to the activities of the Commission for Racial Equality .

THE IMPACT OF MEMBERSHIP OF THE EUROPEAN UNION -  ‘EUROPEAN LEGAL METHOD’

The accession of the United Kingdom to the European Communities Act 1972 has radically altered the standing of parliamentary sovereignty. All UK legislation must be interpreted to avoid conflict with European Law. If there is irreducible conflict European Union law must prevail. The first Judge to face up to this was Lord Denning in H.P. Bulmer Ltd v J Bollinger SA (1974) 3 WLR 202 he argued that the literal approach was inadequate when dealing with the Treaty or Rome since the statute was so broadly worded. The treaty of Rome was meant to be clarified by Secondary legislation. English judges need to more readily adopt the interpretative strategies more common in the other civil law countries of Europe, namely looking at the purpose and principle of such legislation. In Buchanan &  Co Ltd v Babco Forwarding and Shipping UK Ltd (1977) QB 208 Lord Denning specifically pointed out that the European Court of Justice used a ‘schematic’ or ‘teleological’ system of interpretation, looking at the design or purpose of the legislation and quite readily filling in any gaps. Many writers claim to discern increased evidence of a purposive approach in the English legal system of interpretation, but some are more circumspect.

INTERPRETATION AND HUMAN RIGHTS ACT 1998

Section 3(1), the court may not disapply legislation. The court may merely issue a ‘declaration of incompatibility’ which gives rise to a power to take remedial action. Will this blur boundary between interpretation and amendment of status. R&A (Complainant’s sexual history) sub nom R v Y. Sexual offence: Complainant’s Sexual History) [2001] 2 WLR 1546 – House of Lords held that Youth Justice and Criminal Evidence Act 1999 s.41 should be interpreted so that it is compatible with article 6(1) Right to Fair Trial) even though a literal interpretation would indicate that complainants must be protected in court from questions concerning their sexual history when they alleged rape.

In addition the HRA gives the court of Appeal the latitude to effective overruled its decision which were decided before HRA came into effect Fiztpatricj v Sterling Housing Association  HRA was used to extend the right of same sex partners to inherit statutory tenancy under the Rent Act 1977. D v East Berkshire Community NHS Trust (2004) in which the CA held that the decision of HL in   X (Minor) v Bedfordshire County Council (1994) could not be maintained after the introduction of HRA. HL approved the approach in Kay v London Borough of Lambeth (2005). Where a conflict between two decisions is the court will decide which one to follow, or if a decision has been decided per incurrion, such decision would not be followed.

LAW STUDENT’S REVIEW SERIES

BY

OLATUNDE AFUWAPE

LAW OF TRUSTS

 

 INTRODUCTION TO THE LAW OF TRUSTS

INTRODUCTTION

The term 'trust' describes a particular form (or forms) of property holding. Where there is a trust, the legal title holder must apply the property for the benefit of someone else unlike the standard absolute ownership where the owner is free to use the property howsoever he wishes. The person holding the property is a trustee and the person for whose benefit he holds it is the beneficiary and the person who set up the trust is usually referred to as the settlor. In a typical trust, the beneficiary has right against the trustee that the property be applied solely for his benefits, he also have equitable title to the trust property.

Trust could either be expressed (what the owner wanted), while other are imposed by law irrespective of the property owner's wishes. These are resulting or constructive trusts. For a long time English law had both the common law applied by the king's courts and equity applied by the chancery court. These two were merged in 1875.

Trusts are extremely versatile legal devise. Settlors may use them both to provide for family members and to secure their commercial interest. The law imposed trusts ti ensure a just division of the family home upon relationship breakdown, to strip gains from wrongdoers, and to return misapplied property. It is for this reason that trusts play such a central role in English law.

CERTAINTY

To create a valid express trust, the settlor must have intended to create a trust, the trust property must be sufficiently certain and the beneficiaries must have been adequately identified. These are know as the three certainties; intention, subject matter and objects. The purpose of this is to enable the court have adequate information. Trust is intentional and failed gift will not be re-interpreted as trust. No trust will be created if the settlor intended merely to impose some moral obligation on the trustee to use the property for another's benefit. The intention must be legal obligations. The court in establishing whether a settlor intended to create a trust would adopt objective rather than subjective approach. Trust object and subject matter may be uncertain in a variety of ways and to differing degrees. These could be either inexact words (conceptual uncertainty) or not enough factual information (evidential uncertainty).

In respect to certainty of subject matter, the general principle is that the precise identity and location of the trust property, what parts are to go to which beneficiaries must be clearly stated. There is however an exception with homogeneous intangible property, where it is sufficient to identify the source of the trust property from the proportion of that bulk which is to be held on trust. Where a trust if x£ to each of my friend, the trust will succeed so long as any one person can be found who falls within the defined class of beneficiaries. However, where it is x£ to be shared among certain beneficiaries, the trust will only succeed if it is possible to draw-up a complete list of all those who falls within the defined class of beneficiaries.

Where a settlor creates a discretionary trust, the trust will success only if it can be said of any given person that he is or he is not a members of the class of beneficiaries. A discretionary trust will fail, even if its objects are sufficiently certain, it is held to be administratively unworkable or capricious. This is where the class is too big (administrative) and settlor reason for choosing the beneficiaries (capriciousness.) It may be possible to cure uncertainty of subject matter or objects by stipulating for a third party to fix the problem (most useful of evidential uncertainty). If the settlor seeks to make a self declaration of trust, then any uncertainty will result in him continuing to hold the property absolutely, where the property is transferred to a trust, then uncertainty of objects or subject will lead to the trustee holding the property on trust for the settlor.

PURPOSE TRUST

Purpose trusts are set up to use property to promote a particular objective rather than benefit certain individuals. However, the basic rule of English trusts law is that trust must have beneficiaries, where there is no beneficiaries it is not possible to create a purpose trust. This rule is known as the beneficiary principle firmly established in Re Ebdacott (1960) Probition applies only to purpose trust and not to powers for purpose (Re. Douglas (1887). There are however a number of exceptions to the beneficiary principle.

The most frequently cited explanation for the rules come from Marice v Bishop of Durham, which ruled that for trust to be valid it must be capable of being supervised by the courts to ensure that the trustees’ duties are enforced and the settlor's intentions respected. This is based on the reasoning that A) if a trust cannot be enforced it must fail; and b) it is only beneficiaries that can enforce a trust.

 

 

ENFORCEMENT OF TRUSTS

The general rule is that a settlor is divorced from the trust once it is created and the trustees and the beneficiary are then left to enforce the trust. There is a counter argument that if a settlor is still alive, he should be able to enforce the trust in addition to other interested parties.

MUST TRUST BE ENFORCEABLE

There is need to find an enforcer to ensure that the trustees perform their duty. It might be possible however for an honest settlor to enforce a purpose trust to allow if from failure. The difficulty in finding a beneficiary to enforces Sauders v Vaulier right is one the things militating against enforcement of purpose trusts.
Re. Bowes (£5,000 for planting shelter trees for Wemmegil Estate) the court interpreted the owners of the estate as the beneficiary of the trust and gave them the discretion to use the money as they saw fit. In re Andrew's Trusts, a trust for children's education was interpreted to mean the general use of the childred since their education has been provided for.

EXCEPTIONS TO PURPOSE TRUSTS

Anomalous Purposes Trusts - These trusts are created by accidents of legal history and they are:

 

a)    Trusts to look after or provide for certain animals - Re Dean (Trust for the maintenance of testator horses and hounds

b)   Trust for the construction and or maintenance of graves and funeral monuments - Re Hooper

c)     Trust for saying or private masses - Bourne v Keane.

A second exception is found in Re Denley's Trust Deed provided that the carrying out of the purpose must benefit an individual in a way which is not to remote or indirect; and it must be possible to identify all those who would benefit.

Other requirements of purpose trusts are that it must be defined with sufficient certainty for the courts to be able to enforce it - Morice v Bishop of Durham; Re. Astor's Settlement Trusts. Secondly, where the purpose is regarded as capricious or unlawful a clearly defined purpose trust will fail e.g. Brown v Burdett (1882), a trust to block up the rooms of a house for 20 years. Finally purpose trust will fail if they do not satisfy the rule against perpetuities (there must be time limit).

ESSAY ON CRITICAL RACE THEORY

ESSAY ON CRITICAL RACE THEORY

INTRODUCTION: AMERICAN CRITICAL RACE THEORY: THE HISTORICAL PERSPECTIVE

Critical Race Theory (CRT) grew up in America as a response to the failure of the anti-discrimination laws to achieve any real sense of social advantage for the black community. One of the foremost American CRT said black peoples struggle is as old as the nation, making race and racism essential to the definition of America as a nation. The very recognition of slavery was a compromise that allowed the foundation of American Constitutional government (Bell 1995), the drafting of the Independence Constitution in 1787 to include the preservation of slavery to Hayes-Tilden Compromise of 1877 (between Republicans and Democrats to elect Hayes in return to ending reconstruction in the south was instituted to help improve the position of newly emancipated black slaves and the end of military rule in the South with allow white racist to act unchecked). From end of civil war until present a pattern has shown that any black advance is effectively crushed by white backlash and historical racism means that black rights will always be compromised to other economic and social interests. Equality is stated in the law, but economic and social dispossession still suffered renders these legal rights symbolic. Litigation engaged by National Association for the Advancement of Colored People (NAACP) is accused of becoming too fixated with symbolic advances without any serious consideration to inequitable distribution of social and economic powers.  Bell wants people to understand that American is inherently racists. The failure of previous struggles rests upon a fundamental misunderstanding of the nature of law and in the call for racial realism that there is an alignment of the struggle for a new thinking about law that repeat the gestures of the legal realists against the jurisprudence of the old order. Judges political views have immense importance in the outcome of cases as there is no such thing as neutral principle. In Regents of the University of California v Bakke  (court in deciding affirmative action that would allow black candidates to enter the University of California) employ a narrow definition of equality which ignored the social and economic cause of advantages and held that no white students could be refused entrance to give preference to black candidates.

LAW AND RACE DISCRIMINATION

One critical Scholar said discrimination is positional i.e. describes the inter-relating and structured disadvantages in education, work, housing, health care.  The law tends to be blind to such reality. Litigation on civil liberties tends to re-create this problem in terms of an act of violation of anti-discrimination principles that can be remedied, it neutralizes the inappropriate conduct of the perpetrator. Litigating civil liberties issues has the effect to remove any sense of collective responsibility for discrimination. Would it be possible for law to move to an appreciation of ‘positional’ nature of discrimination? Such a shift would be challenging to the legal construction and responsibility as individual fault but risk antagonizing a vast majority reluctant or unwilling to perceive their own complicity in discrimination. Anti-discrimination law has attempted to find ways of breaking out of its formal restraints while trying to display adherence to the form of the law.

RACE, RACISM AND IDEOLOGY

CRT borrows from CLS when it describes anti-discrimination law but also offers a critique of the theories of ideologies CLS scholars put forward.  It examines the differences between ideology and theories.  The work of Gabel and Kennedy takes the notion that law is an ideological distortion of the world.  Ideas/practices of laws have to be examined to see how they interface with wider social, economic and political concerns.  CLS take was that legal reform can never transform social order because the law is already implicated. CLS use trashing that was meant  to reveal the problems that lay under the surface of the law but it completely ignore the role of race in its ideology. Frequent failure of anti-discrimination law was put to the perspective by the whites that they would lose out to black interest and they unite against these law. Ideology in this sense operates to create‘hegemony’ of interest.  For example the labour unions made up of immigrant white works excluded blacks. Civil liberty advances are re-inscripted at a cultural level as black failure to adapt to the supposed norms of white behavior hard work and discipline and demand for special treatment show the continued failure of black community to match up to social standards, hence their inferiority and the partisan one-sided nature of anti-discrimination law.  Though anti-discrimination law is compromise it cannot be abandoned because of its transformational potential.  Whatever their shortcomings, they have served to de-legitimise discrimination and this process is continuing.

CRITICAL RACE THEORY AND BRITISH RACISM

British CRT approached racism as historical problem.  The perception was not much the volume of black settlement but rather its character and effects, especially threat to legal institutions. Immigration is perceived as a threat to English constitutional values rather than opportunity to create different history, institutional response.  Law fails to create a legal notion of race of what is shared in common by communities of Brutishness.  This concept reflects the process of decolonization, the history of colonization that created the empire in the first place.

RACE, RACISM AND BRITISH LAW: A SHORT HISTORY

In the post-war period there was a consensus about the need to stem immigration. It started with           1962 Immigrants Act reducing immigration through issuing employment vouchers (for those link with Britain either through being born in the country or having a passport issued there). This indicates withdrawal from Empire and the Commonwealth British Nationality Act – obligations towards commonwealth citizens being eclipsed by Britain’s role in Europe.  British government was concerned about coloured but not white immigrants. There are tighter legislature for blacks than white. The second Commonwealth Immigrants Act 1968 created even tighter legal definition of British Nationality.  Settled coloured people and immigrants were turned to suspect communities.  Race relation Act 1965 did recognized the problem of discrimination.  The Race Relations Act was seen as the state acting on behalf of capitalists’ interests.  The thinking of the right-wing National Front or British National Party can be seen as the logical extension, rather than departure from, official government discourse on the need to police race. One of the reasons for the passage of 1968 Commonwealth Act was the need to restrict entrance into the country of Kenyans of Asian background. A similar concern was raised about Ugandan Asians, and they were allowed into the country because of the necessity to bear a historical burden. The logic works through into the 1971 Immigration Act with its separate spheres of nationality i.e. partials and non-partials and when it came into effect in 1972 virtually ended all primary immigration.  Despite the language of the 1976 Race Relations Act and developing case law, the operative terms of the law were racists in the most crude of senses. The 1981 British Nationality Act provides a further attempt to classify and control.  Definition of Nationality was divided into British Citizenship, British Dependent Territories Citizenship and British Overseas Citizenship. Linking immigration law with race relations legislations allows these themes to be pursues.

THE RACE RELATIONS ACTS

These takes three phases  1965 Act, expanded by 1968 Act and redefined by 1976 Act, more recently 2000 Act.  Similar themes run through the largely compromised act and leave racism largely intact.  1965 Act passed by Labour was limited measure, emphasis was in  conciliation and where this fail the matter is passed to AGF who may decide to litigate or not. Political exigencies  and wider ideological failure makes it an act without teeth.  In the face of evidence of widespread and violent racism, the first official acknowledgment was in 1981 in a report by Home Office Racial Attacks. The report described endemic institutionalized racism.  If this was a second argument in the foundation for the 1968 Act, it might indicate that lawmakers remained ignorant of the dynamics of the law. The Race Relations Board gives reason for extension and argues that the law gives support to those who do not wish to discriminate but who feel compelled to do so by public pressure.  The 1976 Act widen the scope of the anti-discrimination law, but there were glaring omission such as the exclusion of the police from the provisions of the Act.  The concept of indirect discrimination falls far short of any meaningful idea of institutional discrimination. 

The period since 1945 has seen substantial black and south Asian immigration into Britain, the response to which has been a rise in racism and the simultaneous passing of a series of law designed to reduce immigration (intent was plainly discriminatory).  The various Race Relations Act however have proved ineffective at removing indirect discrimination.

THE OFFICIAL INQUIRIES

Stephen Lawrence a young black student was murdered by a gang of racist white youths while waiting at a bus stop in Eltham, South East London on April 22, 1993.  No one was ever successfully prosecuted for this crime.  The report found no evidence that racism had significantly contributed to the failures to make arrests.  The report addressed complaints against individual officers.

a)    The Scarman Report 1981: This is the report into Brixton Disorder (Brixton an area of South London which has a relatively high black population).  Lord Scarman rejected the allegation that British institutions were systematically involved on racial discrimination as there is no conscious policy or public decision.  The explanation was of ‘unwitting’ racism. Occasional racism could be explained as immaturity of certain officers.  There was acknowledgment that the problem is wider and structural.

b)   The Lawrence Inquiry:  The limitation of racism was given in evidence of how both the political complaints authority and police appreciated  the issue of discrimination, described as a problem of rotten apples that let the side down.  Scarman tended to be used to support that racial discrimination was not a widespread problem in policing. There was a reluctance by the police to come to term with the need to police a multi-racial society, it is attached to a notion of unarmed and consensual policing .  Most worryingly the culture of policing does not encourage a critical self-understanding that would make prejudice easier to identify and to challenge. It addresses the failures of the Lawrence investigation, disparity in the numbers of black people stopped and searched by the police, under reporting of racial incidents.  The report Winning the Race shows that before 1998, not a single office had received training in racism awareness. The Lawrence inquiry shows that these attitudes are not longer acceptable.  In the word of Sir John Woodorck, the police remain a 19^th century institution, a mechanism set up to protect the affluent from what the Victorians described as dangerous classes.

CRITICAL RACE THEORY AND POST-COLONIALISM

Colonialism is foreign rule. Its primary task was to make this rule effective, to assure its long duration, to end or neutralize opposition and to make possible European activity in the colony. It is economic exploitation between ruler and the ruled. It involves three phases,  attempts to exploit the resource and manpower of south America and Africa by European powers.  Direct appropriation began in the nineteenth century and later replaced by a treatise and trading arrangement and the third movement is that of more formal colonial rules of the later 1900s.  This latter phase was concluded and refined by the withdrawal from empire and the independence of the new African states.  The law was a legitimization of European rule and a site of struggle and resistance.  Nigeria is a country that will be brought into being by the law.  Chief Obafemi Awolowo, a Nigerian nationalist,  invoked constitutional values and linking them to his imagination of Nigeria, simultaneously paying homage to a common law tradition and accusing it of failing to live to its rhetoric.  The law was used a weapon for exploiting Nigeria resources and its people. Awolowo accuses the British of denying Nigeria legal and economic sovereignty.  The rule of law is also a feature of Awolowo’s vision.  The independent constitution was a flawed document.  The flaws must be seen alongside a great democratic potential and commitment to human rights and rule of law that are also a feature of Awolowo’s vision.

a)    Post colonialism and the philosophy of law:  There is an alliance between jurisprudence and colonialism.  Works like Henry Maine’s Ancient Law (2002) show clearly the sense in which jurisprudence was informed by the anthropological, philosophical and historical suppositions of the human sciences, especially the distinction between ‘savage’ and the ‘civilised’ can be glimpsed within the central line of legal thinking that runs from Hobbes to Hart.

 

b)   Law and the savage: This is the creation of Western, European identity created in opposition to all those features which it is not (Fitzpatrick).  Savage as an object of nature will act upon, civilize and reform made subject to reason’s of sovereign power. These presumption fed into the mindset responsible for the establishment and perpetuation of both slavery and the colonial project.  The colonized and exploited territories were seen as materials for the West (direct purchase of slave and colonial orders.  By 1800s the West had brought nearly a third of world into its sphere of exploitation. Opposition of law to savagery through foundations of jurisprudence. Thomas Hobbes ‘vision of the chaotic state of nature is informed by structuring separation of savage from organized and regulated culture.  Austin’s definition of laws as the command of the sovereign to which political inferiors owe habitual obedience is itself by Hobbes Leviathan. Desirability of law is protection from the disorder of savage nature.  A solitary savage could not be a social man because he would not  appreciate the necessity of communal living and hence government  The savage mind is ‘unfinished’ certain notions essential for society.  Austin makes a link between this savage stage of nature and the unruly and restless poor, who do not appreciate the need for law. Colonialism was fortified by sense of progress, of the need to civilize those who were savage.  The likes of Robert Knox or Herbert Spencer, who drew on Charles Darwin to create accounts of the superiority of the white race.  Fitzjames Stephens  wrote that English Law ‘is in fact the sum and substance of what we have to teach them.  It so to speak the gospel of the English, and it is a compulsory gospel which admits of no dissent and no disobedience.

TRACING THESE THEMES IN CONTEMPORARY JURISPRUDENCE

Hart wrote that unless law has a minimum of moral content, men as they are would have no reason obeying any voluntary rules. His vision of savage society as that which is unregulated, anarchic and merely awaits the coming of rational legal order.  Primitive law is inflexible and rigid and therefore impossible to change.

CONCLUSION

Critical Race Theory (CRT) grew up in America as a response to the failure of the anti-discrimination laws to achieve any real sense of social advantage for the black community. The very recognition of slavery in American Constitutional government (Bell 1995), the drafting of the independence constitution in 1787, Hayes-Tilden compromise of 1877  - ending reconstruction in the south.  Litigation engaged by National Association for the Advancement of Colored People (NAACP) is symbolic. In Regents of the University of California v Bakke  (court in deciding affirmative action that would allow black candidates to enter the University of California) employ a narrow definition of equality which ignored the social and economic cause of advantages and held that no white students could be refused entrance to give preference to black candidates. One critical scholar said discrimination is positional i.e. describes the inter-relating and structured disadvantages in education, work, housing, health ca

Conclusively, CRT can be seen as intellectual movement that studies the response of law to racism. CRT is interested more broadly in racism as a social and political problem.  Postcolonial jurisprudence seeks to create an account of the issue of race in legal philosophy and pointed out to the classical jurisprudential test with an eye on their silences or evasions of the issue of race. CRT grows out of concern with race and racism in the USA, the latter has been more focused on issues of European colonialism and its aftermath.