STATUTORY INTERPRETATION

STATUTORY INTERPRETATION


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 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 was 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.

Basic function of legal methodology – Ratio dicendi, obiter, real cases. Learn some actual judgements, learn what tactics judges do, and can do. Use what was done with D v S with the case of your own.

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

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 18th 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 limited 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 us 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 judge 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 20th 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) 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

S3(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.

According to s.4(6) does not affect the validity of the provision that must continue to be applied unless and until it is applied by parliament. The case then must be decided according to the meaning of the words under the traditional rules of interpretation law Cust be to 6) – bit of a nose