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.