Block 2 - Unit 5 Statutory Interpretation

Annotations:

• The parliamentary process creates new laws which are designed to be used and the role of judges is to apply the laws to the facts of the cases in front of them. In this sense, the way in which statutes are drafted is crucial to avoid time-consuming and expensive litigation.
• Parliamentary counsel are responsible for drafting government-sponsored Acts of Parliament and they endeavour to ensure that statutes are worded as clearly and precisely as possible. But confusion can always arise.
• Tensions exist between the requirement for judges to uphold the principle of parliamentary sovereignty while allowing sufficient flexibility to undertake the very practical task of interpreting and applying the laws that Parliament has created to the facts of the case before them. Judges have evolved a range of approaches and aids designed to assist in this task, but the decision is left ultimately to the individual judge.

1. Confusion
   1. Amendments

      Annotations:

      • If amendments have been made to the original statute, it may not be as clear or logical as intended.
   2. Number of Bills

      Annotations:

      • The number of Bills has increased greatly. This can lead to less time for parliamentary scrutiny and more chance of error and lack of clarity.
   3. Ambiguity

      Annotations:

      • Words can be ambiguous and open to different interpretations.
   4. Unforeseen events
   5. Broad/general words
2. Framework of rules/aids/techniques

   Annotations:

   • Judges must be extremely careful and consistent when interpreting statute as their decisions can have far-reaching consequences. A judge will first consider whether there is an explanation of the meaning of a word or phrase within the Act. Most Acts have definitions sections designed to be referred to when determining the meaning of certain words used in the Act. However, in practice, the inclusion of definitions cannot pre-empt every issue which may occur.
3. Rules of Interpretation

   Attachments:

   • Advantages and Disadvantages of the Rules of Interpretation
   1. literal rule

      Annotations:

      • Words are given their plain, ordinary grammatical meaning. Historically, this has been the approach most used by judges.
      1. R v Harris [1836] 7C & P446

         Annotations:

         • The defendant bit off his victim's nose. The stature made it an offence 'to stab, cut or wound'. The court held that under the literal rule, the act of biting did not come within the meaning of 'stab, cut or wound' as these implied an instrument had to be used. The defendant was found not guilty.
      2. provides certainty

         Annotations:

         • The literal rule provides certainty and consistency in the way the words of the statute are applied and so reduces litigation.
      3. respect for parliamentary sovereignty

         Annotations:

         • Ensures that judges respect parliamentary sovereignty and follow the intention of Parliament as expressed in the words of the statute.
      4. potential to lead to injustice

         Annotations:

         • The use of the literal rule ignores the wider context in which the statute is being interpreted and has the potential to lead to injustice.
         1. London and North East Railway Co. v Berriman [1946] AC278

            Annotations:

            • A railway worker was killed by a trine whilst oiling the track. No look out man had been provided.  A statute provided compensation payable on death for those 'relaying or repairing' the track. Under the literal rule, oiling did not come into either of those categories so he was not covered by the Act and his wife was not entitled to compensation.
   2. golden rule

      Annotations:

      • The golden rule is an extension of the literal rule as it allows the court to depart from the literal rule where its application would produce an absurd, illogical or repugnant result.
      • The issue with the golden rule is that it provides no clear means to determine the existence or extent of an absurdity, and it does not specify how judges should resolve the absurdity or repugnance. It relies on judicial discretion to resolve these issues and this can result in inconsistencies between different judges.
      1. clear and gross anomaly

         Annotations:

         • There should be a departure from the literal rule where: there is a clear and gross anomaly;Parliament could not have envisaged the anomaly and would not have accepted its presence;the anomaly can be remedied without detriment to the legislative intention;the language of the statute allows for such modification.
         1. Adler v George [1964] 2 QB 7

            Annotations:

            • Under the Official Secrets Act 1920, it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited place. The defendant was actually in the prohibited place rather than 'in the vicinity of', at the time of obstruction.  The court used the golden rule on the basis that it would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. The conviction was upheld.
      2. repugnant outcome

         Annotations:

         • On some occasions, the golden rule has been used where, even though the words of a statute have clear meaning, they lead to an outcome that it considered repugnant or unacceptable.
         1. Sigsworth Bedford v Bedford [1935] Ch 89

            Annotations:

            • A son murdered his mother. She had not made a will. Under the statute setting law on intestacy, he was her sole issue and stood to inherit her estate. The court applied the golden rule, holding that an application of the literal rule would lead to a repugnant result. He was thus entitled to nothing.
   3. mischief rule

      Annotations:

      • The mischief rule is the oldest and most flexible of the rules. where there is an ambiguity in the words of the statute, it allows the court to consider what the law was before the statute was passed in order to discover the defect or gap that was intended to be corrected by the Act.
      1. Hendon's case [1584] EWHC J 36

         Annotations:

         • The mischief rule derives from Heydon's case and directs judges to consider four things.
         • What was the common law before the passing of the Act?
         • What was the mischief or defect for which the common law did not provide?
         • What remedy or solution for this defect did Parliament intend to use?
         • What was the reason for Parliament adopting that remedy?
      2. Smith v Hughes [1960] 1 WLR 830

         Annotations:

         • The defendants were prostitutes who were charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The protitutes were soliciting from private premises, in windows or on balconies so could be seen from the street. The court applied the mischief rule, holding that the activated of the defendants were within the mischief the Act was aimed at, even though in the literal sense, they themselves were in a private place.
      3. more logical

         Annotations:

         • The application of the mischief rule is more logical than the golden rule because it directs the judge to resolve the uncertainty in the wording of the statute in a certain way by looking at the gap that Parliament intended to fill.
      4. caters for new developments

         Annotations:

         • It has also been used to cater for developments that were not envisaged when the statute was created.
         1. Royal College of Nursing v Department for Health and Social Security [1981] AC 800

            Annotations:

            • Section 1 Abortion Act 1967 provided that a pregnancy should by terminated by a 'registered medical practitioner'. When the Act was passed in 1967, only doctors carried out the procedure but in 1972 a new technique was introduced and nurses, under the supervision of doctors, carried out part of the process. The Royal College or Nursing applied to the court for a ruling on whether it was lawful for nurses to carry out the procedure under the Act. The court applied the mischief rule and determined that the Act was designed to end the practice of illegal abortions and to ensure that abortions were carried out by trained people in hygienic conditions. The new procedure promoted this aim and so it came within the wording of the Act.
   4. purposive approach

      Annotations:

      • The purposive approach is an extension or development of the mischief rule. The judge considers the intention of Parliament when it enacted the statute in order to give effect rtf the purpose which Parliament intended.  It looks forward to what Parliament intended to achieve.
      1. R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687

         Annotations:

         • The Pro-life Alliance argued that the Human Fertilisation and Embryology Authority (HFEA) did not have the authority to licence research with regards to cloning. The Human Fertilisation and Embryology Act 1990 granted the Authority the right to licence research with regards to embryos. An embryo was defined in the Act as 'a live human embryo where fertilisation is complete'. However, embryos created by cloning are not fertilised. The court applied the purposive approach and decided that Parliament could not have intended to exclude cloned embryos from the regulation of the HFEA.
      2. adopted by the European Court of Justice
4. Aids to interpretation

   Annotations:

   • As well as using the rules of interpretation, a judge can turn to a number of aids to help them understand what the words of a statute mean.
   1. Internal aids
      1. Explanatory notes

         Annotations:

         • A judge may look for meaning in any definitions sections, headings, side or margin notes etc.
      2. rules of language
         1. Ejusdem generis

            Annotations:

            • This means the same type. If there is a list of specific words followed by general words, then the general words are limited to the same kinds of items as the specific words.
            1. R v Staniforth; Director of Public Prosecutions v Jordan [1977] AN 699

               Annotations:

               • The defendants argued that their publication of pornographic material was not illegal under the Obscene Publications Act 1959. This Act exempted certain pornographic material provided it was 'in the interests of science, literature, art or learning, or of other objects of general concern'. The defendants argued that their material had psychotherapeutic value and therefore was of 'general concern'. The court decided that these words were listed by the presiding specific words to material of educational value and the defendants' material was not educational.
         2. Noscitur a sociis

            Annotations:

            • A word is known by the company it keep. This means that the words in the statute must be looked at in context and interpreted accordingly.
            1. Muir v Keay [1865] LR 10 QB 594

               Annotations:

               • The defendant was convicted of keeping a refreshment house without a licence. The Refreshment Houses Act 1860 provided that all 'houses, rooms, shops or buildings kept open for public refreshment, resort and entertainment' required a licence.  The defendant argued that the words 'and entertainment' required there to be musical or other forms of public performances on the premises for the offence to be committed. The court held that the meaning of 'and entertainment' could be taken from the preceding words and so referred to houses 'open for public refreshment' and 'resort' which did not have to involve any form of musical entertainment.
         3. Expression unius est exclusion alterius

            Annotations:

            • This means that the mention of one thing excludes the others. Where specific words are used and not followed by any general words, then the Act applies only to the specific words.
            1. R v The Inhabitants of Sedgley [1831] 2B AD 65

               Annotations:

               • A statute raised taxes on 'lands, houses and coalmines'. The court held that it did not apply to limestone mines as these were not specifically mentioned nor did the statute imply that it would apply to other types of mines.
      3. Presumptions

         Annotations:

         • Courts have developed certain presumptions. The courts assume that certain points are implied in the legislation unless they are rebutted by words in the statute which indicate something to the contrary.
         1. statutes do not apply retrospectively

            Annotations:

            • Its provisions operate from the day it comes into force and are not backdated, unless there is clear rebuttal in the statute. The presumption applies to criminal liability and other areas of civil concern.
         2. A mental element is required for criminal offences

            Annotations:

            • In order top commit a crime, the person must have carried out the prohibited act and have the required blameworthy intention. It is presumed that Parliament intended the offence to require a guilty intention unless the Act specifically states otherwise.
            1. Sweet v Parlsey [1970] AC 132

               Annotations:

               • A school teacher let out her house to a group of students. The students were smoking cannabis in the house. She was unaware of the activity. She was charged with an offence of being concerned with the management of premises which were being used for the purposes of smoking cannabis, contrary to s. 5(6) of the Dangerous Drugs Act 1965. The statute did not state ant requirement of mens rea of the offence. The House of Lords looked at the common law before the statute was made. The common law required knowledge of the activities in order to impose liability. Her conviction was quashed. 
         3. statutes do not alter the common law

            Annotations:

            • Unless it explicitly states that it does.
         4. statutes do not affect the Crown

            Annotations:

            • Unless it contains a clear statement to the contrary.
         5. statutes do not intend to deprive a person of their liberty

            Annotations:

            • Unless it explicitly makes provision for this type of punishment.
         6. statutes do not intend to conflict with the country's international legal obligations

            Annotations:

            • and so where possible, statures should be interpreted to give effect to existing international legal obligations.
         7. statutes are always speaking

            Annotations:

            • This means that they need to be interpreted in the modern legal context.
   2. External aids

      Annotations:

      • External or extrinsic aids allow the courts to consult sources outside the Act itself. 
      1. Other Acts of Parliament on the same topic
      2. Dictionaries
      3. The Interpretation Act 1979
      4. Textbooks / Academic commentary
      5. International treaties and conventions
      6. Reports

         Annotations:

         • By ad hoc committees or commissions set up to consider a particular issue; by a permanent law reform body, e.g. the Law Commission.
      7. Pre-Parliamentary material

         Annotations:

         • The Green and/or White Papers.
      8. Hansard

         Annotations:

         • Contains the daily ad verbatim report of parliamentary debates in the House of Commons and the House of Lords. It provides a record of what was said as the legislation was in the process of being approved by Parliament.
         1. controversy

            Annotations:

            • In the past, courts would not refer to these records of parliamentary debates. However the situation was altered by the landmark decision of Pepper v Hart [1993].
         2. Pepper (Inspectorate for taxes) v Hart [1993] AC 593

            Annotations:

            • The school masters at Malvern College were entitled to have their children educated at the school at a reduced rate, but obliged under s63 Finance Act 1976 to pay income tax of the difference between the amount they paid and the cost to the school of educating their children. The question was how the cost should be calculated.
            • Section 63 Finance Act 1976 provided that 'the cost of a benefit is the amount of any expense incurred or in connection with its provision'. The school masters argued that the 'cost of the benefit' should be interpreted as the amount of additional direct costs only. These were fairly marginal and covers by the reduced fees, hence no tax would be payable.
            • The Inland Revenue argued that the 'cost of the benefit' should be calculated on the basis of the full cost to the school (including staff salaries, maintenance etc.). Under this calculation, substantial tax was due from the masters.
            • Hansard contained a statement by a government representative from the Treasury to the effect that the impact of s63 on those who enjoyed 'in-house' benefits would be small. On this basis, the teachers should be assessed for tax on the basis of the marginal cost to the school.
         3. circumstances

            Annotations:

            • In this case, the House of Lords broke with tradition and stated that references to parliamentary material should be allowed as an aid the interpretation in certain circumstances.
            • References to Hansard are limited to the consideration of statements made by government ministers or the promotor of the Bill during the passage of legislation through Parliament. The purpose of reference is to enable the court to understand the meaning of the worlds in the statute, and to provide evidence of parliamentary intention.
            1. to determine meaning where the provision is ambiguous or obscure or leads to absurdity
            2. where the material being relied upon consists of a statement by a minister promoting the Bill
            3. the statements being relied upon are clear
5. The Human Rights Act 1998

   Annotations:

   • Incorporates the rights contained in the European Convention on Human Rights (ECHR) 1950 into UK law. The ECHR is an international treaty which was signed by many of the democratic states of Europe in the aftermath of the Second World War. It was designed to protect basic human rights, which includes rights such as the right to a fair trial, the right to liberty, and freedom of expression.
   • The Human Rights Act 1998 enables British citizens to rely on the ECHR provisions in the UK courts. Section 3 of the Human Rights Act 1998 requires that, as far as it is possible, legislation must be read and given effect in a way which is consistent with the ECHR, and where consistency cannot be achieved, the courts must declare the law incompatible with convention rights. This is significant; even if the statutory provisions are clear and not ambiguous, judges may ignore the meaning of the words and apply an interpretation that is compatible with convention rights. The consequences of the courts making a declaration of incompatibility are far reaching as Parliament will need to rectify the decision.