Chapter 16 Evaluation (Statutory Interpretation)

Question 1

ADVANTAGE- literal rule- respects parliamentary sovereignty

Answer 1

Point: since Parliament is the elected body, the literal rule ensures that Judes apply the law as written, preventing unelected judges from making laws

Explain: Parliament represents the will of the public and therefore laws should be applied exactly as parliament wrote them. Judges are not appointed by the electorate and if they started interpreting laws too freely or adding meanings than this would be seen as un democratic

Link: this is an advantage of the literal rule because it respects Parliamentary Sovereignty by not overruling parliament as words are given their plain and ordinary meaning.

Question 2

ADVANTAGE- literal rule- certainty

Answer 2

Point: using the literal rule will make the law more certain

Explain: words will only be interpreted as written making it easier for lawyers and the public.

Link: this is an advantage because the literal rule creates certainty making outcomes of cases easily predictable. This makes giving legal advice easier for lawyers

Counter: however as the words will only be interpreted as written this can lead to unfair situations such as in LNER v Berriman where the result was harsh

Question 3

ADVANTAGE- literal rule- upholds separation of powers

Answer 3

Point: the literal rule upholds the separation of powers

Explain: the literal rule upholds the separation of powers by strictly confining judges to interpreting words in their plain and ordinary meaning. This restricts judicial decision making and an increase of legislature power

Link: this is an advantage because the legislature should be kept separate to parliament as they are in different arms of the state. The principle of the separation of powers must be maintained to uphold democracy

Question 4

ADVANTAGE- Literal rule- pressure on parliament

Answer 4

Point: it can be argued that the literal rule puts pressure on Parliament to make laws correct the first time if the exact words are to be used

Explain: because courts under the literal rule can not fix badly drafted legislation, this puts pressure on Parliament to draft laws carefully and precisely.

Link: this pressure will lead to better drafted legislation which will further increase the certainty in the law.

Counter: however, laws can still be poorly drafted such as The Dangerous Dogs Act 1991 which means when the literal rule is applied the outcomes can be absurd

Question 5

DISADVANTAGE- Literal rule- assumes laws will be drafted perfectly

Answer 5

Point: the literal rule assumes every act will be perfectly drafted

Evidence: this is an issue- for example- The Dangerous Dogs Act 1991 where they used the word ‘type’ of dog when no such thing exists

Explain: this is a problem because Parliament can not foresee every possible situation and the language is often limited or open to multiple interpretations.

Link: this is a disadvantage because it can lead to unjust or absurd outcomes when wording is unclear.

Question 6

DISADVANTAGE- Literal Rule- not possible to cover every situation

Answer 6

Point: when a law is drafted, it is not possible to cover every situation Parliament intended

Evidence: this was seen in Whitley v Chappell as Parliament could not have predicted that someone would impersonate a dead person to be able to vote

Link: this is a disadvantage of the literal rule because judges cannot fill gaps in the law and therefore it prevents judges from being able to deal with situations that Parliament didn’t foresee. Parliaments true intention may be carried out wrong because the court will carry out the literally wording leading to outcomes parliament didn’t want

Question 7

DISADVANTAGE- literal rule- unfair outcomes

Answer 7

Point: Folloeing the exact words in the act can lead to an unfair decision

Evidence: this was seen in LNER v Berriman as the widow was denied compensation even thought the company should have provided a look out man

Explain/ link : following the exact word doesn’t take into account drafting errors and also creates loopholes which can lead to harsh outcomes for one of the parties- Berriman

Counter: however, it can be argued that following the exact wording of Parliament is an advantage because it respects parliamentary sovereignty as judges are unelected and shouldn’t be making laws

Question 8

DISADVANTAGE- literal rule- where words have more than one meaning

Answer 8

Point: where words have more than one meaning, the act can be unclear

Evidence: for example in Fisher v Bell- offer v invitation to treat

Explain: when words have more than one meaning it forces judges to pick one meaning and leads to absurd or unfair outcomes that clearly weren’t parliaments true intention

Link: this is a disadvantage because when words have more than one meaning it can lead to absurd outcomes that are not in line with parliaments intentions

Question 9

ADVANTAGE- golden rule - respects the exact words of parliament

Answer 9

Point: the golden rule respects the exact words of parliament except in limited situations

Explain: the narrow approach allows the judge to choose the most sensible meaning- R v Allen

Link: this is an advantage of the golden rule because by respecting the exact word of parliament, the rule is upholding parliamentary sovereignty. It also helps preserve the separation of powers as the judges aren’t making new law when using the narrow approach

Counter: however, it can be argued that when the broad approach is used it is the judge is changing the meanings of the words in an Act and therefore this is not preserving the separation of powers

Question 10

ADVANTAGE- golden rule- broad approach provides sensible decisions

Answer 10

Point: the broad approach can provide sensible decisions in cases where the literal rule would lead to a repugnant situation

Evidence: this was seen in Re Sigworth

Explain: the broad approach allows the judge to modify the clear, literal meaning of a word in an Act to avoid an outcome that would be repugnant to public policy

Link: this is an advantage because it provides fair outcomes that wouldn’t happen if the rigid literal rule applied

Question 11

ADVANTAGE- golden rule- prevents parliament amending legislation

Answer 11

Point: the golden rule prevents parliament from having to amend legislation

Explain: the golden rule allows for some words to be changed in an Act of Parliament if they would lead to a repugnant outcome. This prevents parliament from having to go through the lengthy process of amending the legislation to avoid repugnant results

Link: this is an advantage of the golden rule because amending legislation is a long process that should be avoided as the golden rule reduces the need to amend it. The golden rule prevents a huge amount of legislation needing to be changed

Question 12

ADVANTAGE- golden rule- upholds authority of parliament

Answer 12

Point: the golden rule upholds the authority of parliament

Explain: the rule upholds the authority of parliament as it only allows wording to be altered in very limited situations where the outcome would be absurd or repugnant

Link: this is an advantage of the golden rule because it respects parliamentary sovereignty but still allows for a reduction in repugnant situations because words can be changed

Question 13

DISADVANTAGE- Golden rule- limited in its use

Answer 13

Point: the golden rule is very limited in its use

Explain: this means it is only used in rare occasions and is not always possible to predict when courts will use the golden rule over the literal rule

Link: this is a disadvantage because it makes giving legal advice more difficult as it is not certain when the rule will be used. Harder for parties to predict the outcomes of their case which reduces certainty . Courts are reluctant to use it leaving many unjust outcomes unaddressed

Question 14

DISADVANTAGE- golden rule-‘feeble parachute

Answer 14

Point : Micheal Zander describes the rule as a ‘feeble parachute’.

Explain: this means that it is an escape route but can not do very much. The rule can not provide much practical relief from bad drafting. It is a weak safety net because it doesn’t define ‘absurdity’ and isn’t consistently applied

Link: this is a disadvantage because it doesn’t fix the problems wirth bad drafting issues and is too similar to the literal rule meaning unjust outcomes can still occur

Counter: however, it can be argued that the rule is still beneficial because it does allow for word in act to be changed If they would lead to a repugnant situation and although it doesn’t do much this is because it needs to respect parliamentary sovereignty

Question 15

DISADVANTAGE- golden rule- can’t be used in cases like Berriman

Answer 15

Point: the golden rule can not be used in cases like LNER v Berriman (1946) as although the situation can be considered unfair, the result is not absurd or repugnant

Explain: the rule can not prevent unfair outcomes as these aren’t always classed as repugnant situations

Link: this is a disadvantage because the rule does not prevent unfair situations which need to be addressed. Leads to harsh outcomes for parties who deserve justice

Question 16

DISADVANTAGE- golden rule- unpredictable

Answer 16

Point: the golden rule is unpredictable and lacks guidelines

Explain: this is because it does not allow judges to change the wording of a statute. It lacks guidelines as it allows judges to subjectively decide what constitutes an absurd meaning.

Link: this is an issue because the subjective nature of it makes its use inconsistent and also it infringes on the separation of powers as judges are allowed to change the meanings of words when they think it would lead to a repugnant result

Question 17

ADVANTAGE- mischief rule- promotes purpose of the law

Answer 17

Point: the mischief rule promotes the purpose of the law which respects Parliaments intentions

Explain: it does this because it allows judges to look back at the gap in the law that the act was designed to cover. This brings about a more just result such as in Smith v Hughes. From the publics point of view, would it have been seen as just if the prostitutes were found not guilty just because they weren’t actually on the streets

Link: this is an advantage because it respects what Parliament was trying to promote when making the Act allow this purpose to be carried out through correct interpretation of the law

Counter: however it can be agreed that the mischief rule infringes on the separation of powers because judges shouldn’t be interpreting what they thought Parliament intended

Question 18

ADVANTAGE- Mischief rule- law commission prefers the mischief rule

Answer 18

Point: the Law Commission prefers the Mischief rule and since 1969, had recommended that it should be the only rule used in statutory interpretation

Explain: the Law commission prefer the mischief rule because it promotes Parliament intent by allowing judges to identify and fill in the gaps of the old common law

Link: it is an advantage that the law commission supports the mischief rule because it gives the rule authority and legitimacy. This is because the law commission is a respected expert law- reform body

Question 19

ADVANTAGE- mischief rule- the rule gives effect to parliaments true intentions/dont have to amend legislation

Answer 19

Point: the rule gives effect to Parliaments true intentions when passing the act

Explain: judges have to identifies the gap in the old common law and find the remedy that Parliament wanted to give.

Link: this is an advantage because it promotes parliaments intentions without having to create further legislation or amend current legislation

Counter: however, it is difficult of to find the intention of Parliament when making the law so the rule is hard to use

Question 20

ADVANTAGE- mischief rule- allows for the use of external aids

Answer 20

Point: the mischief rule allows judges to look at external aids like Hansard

Evidence: the use of Hansard was done in Pepper v Hart

Explain: external aids help judges find the intentions of parliament when making the act by looking at things like international treaties and dictionaries from the time the act was made

Link: this is an advantage as external aids are allowed to be used which means the mischief rule is more likely to give effect to parliaments true intentions

Question 21

DISADVANTAGE-mischief rule- judges are divided on when to use the rule

Answer 21

Point: judges do not always agree on the use of the mischief rule.

Evidence/Explain: the split decision of the Law Lords in Royal College of nursing v DHSS shows that even senior judges do not always agree on the use of the mischief rule, this was because the judges were divided into those using the literal rule and the mischief rule. This creates inconsistency

Link: This is a disadvantage because the mischief rule creates inconsistency in cases which undermines the rule of law as this principle states that the law should be clear and certain

Question 22

DISADVANTAGE-mischief rule-uncertainty

Answer 22

Point: The use of the Mischief rule may lead to uncertainty in the law, making legal advice difficult

Explain: The rule relies on a judges subjective interpretation of Parliaments intention which makes it impossible to predict the outcome of a case as there are multiple ways a judge can interpret parliaments intentions.

Link: This is a disadvantage because uncertainty makes giving legal advice difficult for lawyers.

Question 23

DISADVANTAGE-mischief rule- not as wide as the purposive approach

Answer 23

Point: The mischief rule is not as wide as the purposive approach

Explain: it is not as wide as the purposive approach as it is limited to looking back at the old gap in the law. It can not be used to make a more general consideration of the purpose of the law

Link: This is a disadvantage because the mischief rule is less effective at dealing with situations arising from new technology and societal changes.

Question 24

DISADVANTAGE- mischief rule- finding intention of parliament can be hard

Answer 24

Point: Finding the intention of Parliament when making the law can be difficult which makes it hard to use the mischief rule

Explain: This is particularly a problem for older statutes as it can be difficult to ascertain the legal or social issue that the legislation was designed to remedy

Link: it is a disadvantage that the mischief rule is difficult to use because it reduces the effectiveness of it to come to a decision about Parliaments intentions

Counter: However, it can be argued that because the mischief rule allows for the use of extrinsic aids, finding the intention of Parliament can be made easier.

Question 24

ADVANTAGE- Purposive Approach-take account of new technology

Answer 24

Point: Judges can take account of new technology introduced after passing the act Evidence: this was seen in Royal College of Nursing v DHSS as new technology in abortion operations had been introducing after the Abortion Act 1967 was passed Explain: By taking account of new technology, absurd results can be avoided because taking a literal interpretation of an older statute doesn't take account of modern technology Link: This is an advantage because it makes sure the law remains effective and relevant in a rapidly changing society without constant legal intervention.

Question 25

ADVANTAGE-Purposive Approach- fill new gaps in the old law

Answer 25

Point: Judges can fill in any gaps in the law left by parliament or dealing with new situations Explain: The Purposive Approach fills gaps in the 'old law' by allowing judges to interpret legislation in line with Parliaments intention and purpose Link: This is an advantage because filling in the gaps of the law makes the law more effective and credible as it changes with society Counter: However, it can be argued that by filling in the gaps of the old law judges are making new law which infringes on the separation of powers as judges shouldn't be making law

Question 26

ADVANTAGE- Purposive Approach- it achieves justice

Answer 26

Point: There are many examples of the Purposive Approach achieving justice Evidence: In the Jones v Tower Boot Case. the employers were found liable as they should have been keeping greater control over their workers as the victimisation occurred in the workplace. Link: this is an advantage because the purposive approach achieves greater justice than other rules such as the literal rule. The purposive approach allows for greater consideration of the intentions of parliament which achieves greater justice

Question 27

ADVANTAGE- Purposive Approach- allows for the use of external aids

Answer 27

Point: the Purposive Approach allows judges to look at external aids like Hansard Evidence: the use of Hansard was done in Pepper v Hart Explain: external aids help judges find the intentions of parliament when making the act by looking at things like international treaties and dictionaries from the time the act was made Link: this is an advantage as external aids are allowed to be used which means the Purposive Approach is more likely to give effect to parliaments true intentions

Question 28

DISADVANTAGE- Purposive Approach-undemocratic

Answer 28

Point: It is undemocratic Explain: It is undemocratic as judges are interpreting laws in a way, they consider Parliament meant and judges are not accountable for the decisions they make in court. Judges are not elected by the public. Some people suggest that parliament should make clear the meaning when they pass the Act Link: This is a disadvantage because judges are therefore violating the separation of powers by making new laws and this is therefore undemocratic Counter : However, it can be argued that judges are only filling in gaps in the law left by parliament and aren't making completely new laws

Question 29

DISADVANTAGE- Purposive approach-time consuming

Answer 29

Point: It may be time consuming to find out what parliament meant Explain: Hansard and Law Commission reports require a lot of time to be studied. Link: this is a disadvantage because by being time-consuming, this is increasing the cost and length of litigation which puts a greater burden on both parties involved. It can also be unfair for the less economically dominant part who may not be able to afford prolonged litigation

Question 30

DISADVANTAGE-Purposive Approach- Litigation is uncertain and expensive/inconsistent

Answer 30

Point: Litigation is uncertain and expensive. Explain: Legal advice is difficult as lawyers will not know until the final judgement whether the judges are prepared to use this approach Link: There is no certainty in the purposive approach, outcomes vary significantly case by case and it can not be predicted if the approach will be used. This is a disadvantage because legal advice is therefore difficult to give by lawyers to clients

Question 31

DISADVANTAGE- Purposive Approach- cause uncertainty if judges change the meaning of a statute

Answer 31

Point: It may also cause uncertainty if judges change the meaning of a statute Explain: The approach gives judges significant discretion in determining and applying the law's underlying purpose, potentially overriding the literal text. This discretion means different judges may reach different conclusions to what parliament intended . This causes uncertainty as confusion is created on what meaning to follow Link: This is a disadvantage because uncertainty makes the law hard to follow and predict- legal advice more difficult