Chapter 16 Statutory Interpretation

Question 1

What is Statutory Interpretation?

Answer 1

Statutory Interpretation is where judges give a meaning to the words of an Act of Parliament when they are delivering their judgement in court. When acting in this way, judges use certain rules:

1. The literal rule
   2.the golden rule
2. The mischief rule

The three rules take different approaches and a judge may prefer the use of one rule another another. Once an interpretation has been set, it might then form a precedent for future cases

Question 2

The literal rule

Answer 2

This rule developed in the early nineteenth century and has been the main rule applied ever since then. Using this rule, a judge gives words their plain, ordinary or literal meaning, even if the result is absurd

This idea was expressed by Lord Esher in R v Judge of the City of London Court, when he said “if the words of an act are clear then you must follow them even though they lead to a manifest absurdity”

Question 3

Literal rule- Whiteley v Chappell

Answer 3

This was where the defendant was charged under an act that made it an offence to impersonate ‘any person entitled to vote’ . The defendant had pretended to be a person whose name was on the voters list but had died. The court held that the defendant was not guilty since a dead person is not in the literal meaning of the words entitled to vote’.

The use of this role has been criticised because it can lead to harsh, unjust decisions

Question 4

Literal rule- London and North Eastern Railway Co v Berriman

Answer 4

A railway worker was killed while doing maintenance work, piling points on the railway line. His widow tried to claim compensation because there had not been a look out man provided by the company in accordance with the Fatal Accident Act which stated that a look out man should be provided for men ‘repairing or relaying the track,

The court took the words ‘relaying and ‘repairing in their literal meaning. They said that piling points was maintaining the line and not relaying or repairing so that Mrs Berryman’s claim failed

Question 5

Literal Rule- Fisher v Bell

Answer 5

A shopkeeper had a flick-knife displayed in his shop window with a price tag in it. The Restriction of Offensive Weapons Act 1959 made it an offence to ‘offer’ such flick knives for sale. In contract law, goods on display in a shop are not offers in the technical sense but an invitation to treat, preparatory to a customer making an offer

Lord Justice Parker applied the literal rule of statutory interpretation to the offence and found that the shopkeeper had committed no offence

Question 6

Literal Rule: Cheeseman v Director of Public Prosecutions

Answer 6

Section 81 of the Public Health Acts Amendment Act 1907 gave the word ‘street’ the meaning of ‘any place of public resort under the control of local authority’. The defendant, Cheesman was charged with wilfully and indecently exposing his person in a street to the annoyance of passengers. He was seen by police officers who were stationed in a public toilet following complaints. The issue was whether the stationary officers were ‘passengers’

Lord Justice Bingham said that the Oxford English Dictionary showed that in 1847, when the Act was passed , ‘passenger’ had a meaning if a ‘passenger-by’ or through; a traveller (usually on foot). Before the meaning of ‘street’ was enlarged in 1907, that dictionary definition of passengers was not hard to apply: it clearly covered anyone using the street for ordinary purposes of passage or travel. The dictionary definition could not be applied to a place of public resort, such as a public lavatory, but in a common sense reading, ‘passenger’ had to mean anyone resorting in the ordinary way to a place for one of the purposes for which people would normally resort to it. If that was the correct approach, the 2 police officers were not passengers. They were stationed in the public lavatory in order to apprehend persons committing acs. They were not resorting to that place of public report in the ordinary way but for a special purpose and thus not passengers

Question 7

What is the golden rule?

Answer 7

The golden rule is an extension of the literal rule as it starts by looking at the literal meaning of words but the judge is then allowed to avoid an interpretation that would lead to an absurd result.

There are 2 ways in which a judge can do this:
- the narrow approach
-the broad approach

Question 8

The golden rule- narrow approach

Answer 8

Under the narrow approach, the court may only choose between the possible meanings of a word or phrase. If there is only one meaning then that must be taken. This can be seen in Adler v George

Adler v George: it was an offence to obstruct her majesty’s forces in the ‘vicinity’ of a prohibited place. The defendant had obstructed HMF in the base, the prohibited place.!(!3 issue is whether the base is ‘in the vicinity’. The court found the defendant guilty as the words were interpreted as ‘being in or in the vicinity’

Question 9

The golden rule- the broad approach

Answer 9

The words have only one clear meaning, but if that meaning was used, it would lead to a repugnant situation due to the implications it would have on society then a result should not be allowed. In such a case a judge will modify the words of a statute to avoid the problem

Re Sigsworth: a son murdered his mother. The mother had not made a will, so normally her estate would have been inherited to her next of kin. This meant that the murderer son would have inherited as her ‘her issue’. There was no ambiguity in the words of the act, but the court was not prepared to let a murderer benefit from his crime, so it was held that the literal rule should apply and the broad approach of the golden rule should be used to prevent the repugnant situation of the son inheriting.

Question 10

Golden rule- narrow approach- R v Allen

Answer 10

The defendant attempted to marry the niece of his first wife, to whom he was still married. The defendant was charged with the offence of bigamy under S57 of the Offences Against the Person Act 1861. The statute states ‘whoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence’. The defendant argued that he could not be guilty because his second marriage was void .The court using the narrow approach of the golden rule decides that ‘shall marry’ be interpreted as going through a ceremony of marriage so the defendant was guilty.

Question 11

What is the Mischief rule?

Answer 11

This rule gives a judge more discretion when interpreting legislation than the two previous rules. The definition of this rule comes from Heydon’s case in 1584, where it was said that there were 4 points the court should consider.

1. What was the common law before the making of the Act

2.What was the mischief and defect for which the common law did not provide

3.what was the remedy Parliament have given use

4.the true reason of the remedy

Question 12

What is the Mischief rule mean for the courts in simpler terms?

Answer 12

Under this rule, the court should look to see what the law was before the Act was passed in order to discover what gap (mischief) the Act was intended to cover. The court should then interpret the act in such a way that the gap is covered.

Question 13

Mischief rule- Smith v Hughes 1960

Answer 13

The judges had to interpret S1(1) of the Street Offences Act 1959, which said it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’. Women were soliciting on a private balcony, not on a street. They argued they were not guilty under this section because they were not literally in a street or a public place. The court decided they were guilty.

Lord Parker said “I approach this matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes”

Question 14

Mischief rule: Royal College of Nursing v DHSS 1981

Answer 14

The Abortion Act 1967 provided a pregnancy should be ‘terminated by a registered medical practitioner’. Due to advances in science, part of the procedure was performed without the doctor present. The majority of judges applied the mischief rule and decided that the act was designed to carry out safe abortions in the hospital and prevent backstreet abortions so it was therefore legal

However, a minority applied the literal rule claiming the judges were redrafting the law

Question 15

Mischief Rule: Elliot v Grey (1960)

Answer 15

The defendants car was parked on the road. It was jacked up and had its battery removed. He was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The defendant argued he was not ‘using ‘the car on the road as it was not drivable

The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident.

Using the mischief rule- the law aimed to prevent uninsured vehicles from being used on the road and to ensure people were being compensated in the incidents of hazards on the road.

Question 16

What are the differences and similarities between the mischief rule and the purposive approach?

Answer 16

The mischief rule is similar to the purposive approach, except that it does require the identification of a problem or mischief before it can be used. It may often rely on the use by judges of extrinsic aids to help detect the intention of Parliament and the mischief that preceded the passing of the act

The purposive approach is used to make sure the purpose of the act is given effect and therefore it is said that it is a more positive approach

The purposive approach is used at the judges discretion to make sure the purpose of the Act is given effect, whereas, the mischief rule looks at the gap in the law before the Act was passed and the judge interprets the words to deal with the mischief

Question 17

What is the Purposive approach?

Answer 17

The court is looking at the true intention of what Parliament wanted to achieve when creating a statute.

This goes beyond the mischief rule and the literal rule as the court is not just looking at the meaning of individual words or to see what the gap was in the old law; judges are deciding what they believe Parliament meant to achieve and giving effect to that purpose

Question 18

Who is the champion of the Purposive approach?

Answer 18

the champion of this approach in English law was Lord Denning. His attitude towards statutory interpretation was shown when he said in the case of Magor and St Mellons v Newport Corporation “ we do this better by filling in the gaps and making sense of the enactment”

Question 19

Who criticised Lord Dennings attitude and why?

Answer 19

Lord Dennings attitude was criticised by judges in the HL when they heard the appeal in the case.

Lord Scarman said “If Parliament says one thing but means another it is not, under the historic principles of the common law, for the courts to correct it”

This speech shows the problem with the purposive approach. How do they know what parliaments true intentions were? Due to the principle of Parliamentary Sovereignty, judges should be interpreting and giving effect to words in an act, they should not be making law themselves.

Question 20

Purposive approach: R v Registrar -General, ex parte Smith

Answer 20

Section 51(1) of the Adoption Act 1976 gave an adopted person the right to obtain a copy of their birthday certificate . Mr Smith wanted information to to enable him to obtain his birth certificate. He had been convicted of 2 murders and was detained. Taking a literal interpretation, the Registrar-General had to supply him with the information.

A psychiatrist thought that it was possible he might be hostile towards his natural mothe. The Court of Appeal decided to use the purposive approach, saying that, despite the plain language of the act, parliament could not have intended to promote serious crime. In view of the possible risk to Mr Smiths natural mother I’d be discovered he identity, the Registrar General did not have to supply any information

Question 21

Purposive Approach: Jones v Tower Boot Co(1997)

Answer 21

A young bal k worker was physically and verbally abused at work by fellow workers. He sued his employers, arguing that they were responsible for the actions of their workers. It had to be decided whether the worker were ‘acting in the course of employment’ under S32 of the Race Relations Act 1976. The employers argued that the abuse was not part of the job and fell outside the course of employment.

The CA ruled, using the purposive approach, that parliaments intention when passing the act was to eliminate discrimination in the workplace and this could not the achieved by giving a narrow interpretation to the words ‘course of employment’. As a result, the employers were liable

Question 22

What are intrinsic aids?

Answer 22

These are sound inside the Act of Parliament the judge is trying to interpret to help make the meaning of some words clearer.

In an exam make sure to explain HOW they help the judge interpret the act

Question 23

Intrinsic aids/ Long/short title

Answer 23

The act can be referred to for guidance and tells us the purpose of why it is created. The long title may also explain briefly parliaments intentions

For example in the Royal college of nurses case, judges referred to the long title of the abortion act 1967 “An act to amend and clarify the law relating to the termination of pregnancy by registered medical practitioners”

Question 24

Intrinsic aids/ Preamble

Answer 24

Older statues usually have a preamble that sets out Parliaments purpose in enacting that statute. Modern statutes either do not have a preamble or contain a very brief one

For examples the Theft Act 1968 states that is an Avr aimed to modernise the law on theft

Question 25

Intrinsic aids/ headings and schedules

Answer 25

Useful internal aids are headings before a group of sections. Schedules are at the end of the act and may clarify particular points which helps judges to interpret the act by simplifying the points as Acts of Parliaments are very long and complex

Question 26

Intrinsic aids/ marginal notes

Answer 26

Marginal notes explain different sections but these are generally not regarded ad giving parliaments intention as they will be inserted after the Parliamentary debates and are only helpful comments put in by the printers

Question 27

Intrinsic aids/ Interpretation Section

Answer 27

Newer acts contain an interpretation section that explain the key word in the act. Useful for technical and medical acts. Section 10 of the Theft Act refers to a ‘weapon of offence’s and defines it in the interpretation section This is a new development in statutory drafting and one that could bother encourage and help the use of purposive approach

Question 28

What are Extrinsic aids?

Answer 28

These are items outside an Act which may help a judge find the meaning of words in an Act. - pre- legislative documents such as Green and white papers state the proposals for the law and show parliaments true intentions. Law commission reports of law reform bodies - previous acts of parliament on the same topic - dictionaries used at the TIME the act was passed which helps look at definitions of words and phrases at the time the law was made . Seen in Cheesman v DPP - academic books- legal academics may provide insights into problems and reasons for why the law was made

Question 29

Extrinsic Aids/ Hansard

Answer 29

This is the official report of what was said in Parliament when the Act was debated. In Pepper v Hart, the House of Lords relaxed the previous rule that courts could not look at what was said in Parliamentary debates and accepted that Hansard could be used in a limited way. These seven judges included the Lord Chancellor, who was the only judge to disagree with the use of Hansard. In Pepper v Hart: the HL referred to statements made by the Financial Secretary to the Treasury in Parliament, which showed that the intention was to tax employees on the basis of additional cost to the employer of providing the reduction The result of the decision is that Hansard may be considered but only where the words of the Act are ambiguous or obscure or lead to an absurdity. Even then, it should only be used if there was a clear statement by the minister introducing the legislation, which would resolve the ambiguity. The Lord Chancellor in Pepper v Hart opposed the use of Hansard on practical grounds, pointing out the time and cost it would take to research Hansard in every case

Question 30

Extrinsic aids/ Reports of Law reform bodies and the Law Commission

Answer 30

As with Hansard, reports by law reform agencies including the Law Commission, used to not to be considered by judges. However this rule was relaxed in the Black Clawson case in 1975, when it was accepted that such a report should be looked at to discover the mischief it gao in the law that the legislation based on the report was designed to deal with. After all, a piece of legislation drafted following a detailed investigation and report is likely to follow closely the recommendations of the reform body and their reasoning

Question 31

Extrinsic Aids/ International Treaties and conventions

Answer 31

In Fothergill v Monarch Airlines (1980), the HL decided that an international convention should be considered, as it was possible that in translating and adapting the convention to the legislation process, the true meaning of the original might have been lost. The HL in the same case also held that an English court could consider any preparatory materials or explanatory notes published with an international convention. The reasoning behind this is that other countries allowed the use of such material, and the UK judiciary should also be allowed to do so, for consistent international interpretation

Question 32

Extrinsic Aids/ The Interpretation Act 1978

Answer 32

This Act provides a definition of certain words that are frequently used in legislation. For example; ‘Land’ includes buildings and other structures, land covered with water. The Act also provides that, unless the contrary intention appears: 1. Words importing the masculine gender include the feminine 2. Words importing the feminine gender include the masculine 3. Words in the singular include the plural and words in the plural include the singular

Question 33

Impact of EU law on statutory Interpretation

Answer 33

Most European countries prefer the purposive approach when interpreting their own legislation. The Court of Justice of the European Union has also adopted this approach when interpreting European Union Law. This preference for the Purposive approach has affected English Judges in 2 ways : 1.They accepted that the purposive approach is the correct one to use when dealing with European law 2. Using the purposive approach for European Union law made the judges more accustomed to it, and therefore more likely to apply it to cases involving purely English law. Even though the UK had left the European Union, judges in England are likely to continue using the Purposive approach as it has become so well used and accepted in English law

Question 34

How else has EU law impacted statutory interpretation?

Answer 34

Using the Purposive approach allowed the judiciary in England to conform the supremacy of EU law over UK law. An example of this was in the case of Factortame in 1990- the HL using the purposive approach, decided to disapply the Merchant Shipping Act 1988 which was a piece of EU law. The court considered it was acting by the European Communities Act 1972 which provided that EU law is to prevail over inconsistent Acts of Parliament The European Communities Act 1972 was repealed by the European Union (withdrawal) Act 2018 which allowed the UK a to leave the EU. This meant that from the time of leaving, EU law was no longer supreme to that of UK law. Due to the principle of Parliamentary Sovereignty, a decision such as Factortame would not be made by UK judges.

Question 35

Impact of the Human Rights Act 1988 on Statutory Interpretation

Answer 35

Section 3 HRA says that, as far as possible to do so, legislation must be read and given effect in a way which is compatible with the European Convention on Human Rights (ECHR). This approach only applies where one of the convention rights is an issues.

Question 36

Impact of the Human Rights Act 1988- Godin- Mendoza v Ghaidan

Answer 36

The Rent Act 1977 allowed an unmarried partner to succeed to a tenancy ‘if a person who was living with the original tenants as his wife of husband shall be treated as the spies of the original tenant’. This question for the Court of Appeal was whether this section covered same- sex partners. A previous HL decision ruled that same sex partners did not have the right to take over tenancy. The Court of Appeal decided that the Rent Act had to be interpreted according to the ECHR which forbids discrimination on the grounds of gender. In order to make the Rent Act complaint with the EVHR, it interpreted the words ‘living with the original tenant as his or her wife or husband’ to mean ‘as if they were his or her wife or husband’. This allowed same sex lathered to have the same rights as unmarried heterosexual couples.