statutory interpretation

Question 1

What is meant by statutory interpretation?

Answer 1

Judges may be asked to interpret the meaning of laws

Question 2

What are the 4 rules of statutory interpretation?

Answer 2

literal rule
golden rule
mischief rule
purposive

Question 3

What is the literal rule?

Answer 3

the intention of parliament is considered as contained in the words passed. The literal meaning of those words must be taken. Words must be given their ordinary, plain, ad natural meaning

Question 4

What are the 5 features/characteristics of the literal rule?

Answer 4

19th century, Victorian approach to interpretations
Most aspects of life were strict and rigid
The rule reflected the Victorian approach to life - inflexible
The starting point for interpreting any legislation
Lord Esher: ‘ if the words of an act are clear follow them even thought they can lead to a manifest absurdity’

Question 5

What is the case which show the literal law?

Answer 5

fisher v bell

Question 6

What are 4 advantages of the literal rule?

Answer 6

-respects parliamentary sovereignty
- Judges do their job of applying law
- Gives certainty to the law
- Upholds separation of powers

Question 7

What are 4 disadvantages of the literal rule?

Answer 7

• Assumes every act will be perfectly drafted
• Following the exact words may lead to unfair absurd decisions
• Words may have more than one meaning so which does the judge choose?
• When the law is drafted its not possible to cater for each and every legal situation

Question 8

What is the golden rule?

Answer 8

It a modification of the literal rule, which takes the problems caused by the literal and aims to achieve a fair outcome for the parties where applying the literal rule would cause unfairness

Question 9

How do you use the golden rule?

Answer 9

• Start by looking at the literal meaning
• Will there be an absurd/repugnant decision?
• If that’s the case then a secondary meaning ‘may’ be taken

Question 10

What are the two approaches in the golden rule?

Answer 10

Narrow approach
Broad approach

Question 11

Under the narrow approach to the golden rule what will the judge ask?

Answer 11

• Will taking the ordinary and natural meaning of the word(s) lead to an absurdity
• Is the word(s) in question ambiguous?
• Is the word(s) capable of more than one meaning?
  If the answer is yes, then the judge may use another meaning which does not result in an absurdity

Question 12

What case demonstrates` the narrow approach of the golden rule?

Answer 12

R v Allen

Question 13

What is the broad approach to the golden rule?

Answer 13

A wider application of the golden tule and is used where:
- The word(s) only have one clear meaning and the word(s) aren’t ambiguous
- By giving the plain meaning would prove unacceptable
In this situation the court will use the broad approach to modify the words of the statute in order to avoid this problem

Question 14

What case demonstrates the broach approach of the golden rule?

Answer 14

R v Sigworth

Question 15

What are 4 advantages of the golden rule?

Answer 15

• Provides an ‘escape route’ from absurd decisions
• Prevents the absurdity and injustice caused by the application of the literal rule
• To an extent the rules still respect parliamentary sovereignty as judges are only correcting errors not deciding parliaments intentions
• Go beyond the literal rule by looking at parliaments intention to passing the Act

Question 16

What are 4 disadvantages of the golden rule?

Answer 16

• This rule gives too much power to judges and effectively decides what the law is
• Too much discretion which is undemocratic
• Using the rule can lead to inconsistency as there’s not guidance given to what’s classed as absurd
• Really still very limited and therefore same problems as he literal rule

Question 17

What is the mischief rule?

Answer 17

A rule whereby judges will take into account the problem in the law the statute was intended to fill. The judge will be required to work out parliaments intention in passing the Act. The judge must then interpret the statute in such a way as to put a stop to that problem. It can only be used if the Act in question was enacted to fill a gap in the old law

Question 18

What 4 factors to the judges follow for the mischief rule and which case laid this out?

Answer 18

Heydon’s case:
- What was the common law before the making of the Act?
- What was the mischief in the previous law?
- Identify the way in which parliament proposed to remedy the defect
- Give effect to it

Question 19

What was the rules of the mischief rule once re-stated and which case sets this out?

Answer 19

Jones v Wrotham Park:
- It’s possible to determine precisely the mischief that the Act was intended to remedy
- It’s approach that parliament has failed to deal with the mischief
- It’s possible to state the additional words that would have been inserted had the omission been drawn to parliaments attention

Question 20

What cases demonstrates the mischief rule?

Answer 20

Smith v Hughes
Royal College of Nursing v DHSS

Question 21

What are 4 advantages of the mischief rule?

Answer 21

• It helps avoid the absurd injustice of a literal rule decision
• It allows for ‘quick repairs’ to bad laws by allowing immediate reform and improvements to the law as the case is interpreted to avoid the michief behind the act
• Allows judges to give parliaments will despite a degree of discretion
• Respects the exact words of parliament, except in limited situations. The narrows approach allows judge

Question 22

What are 4 disadvantages of the mischief rule?

Answer 22

• The rule is extremely old and set st a time when there were very few statues and they weren’t complicated therefore easier to work out parliaments intentions
• It must be possible to discover the mischief which can be difficult
• Rule allows for judicial law making the subjective decision making
• Difficult to predict when this will be used as it has a limited scope for use

Question 23

What is the purposive approach?

Answer 23

Heavily influenced by our previous membership of the European Union. The court will look at the spirit of the act rather than the strict letter of law. The judges decide what they believe parliament meant to achieve by passing the Act

Question 24

How it the purposive approach different to the mischief rule?

Answer 24

Using the purposive approach the judges don’t need to look for any gaps in the old law. Some Acts are passed for some social good and/or purpose not just because there was a defect in the previous law

Question 25

What are the two cases for the purposive approach?

Answer 25

R v Redistar-General, ex parte smith Jones v Tower Boot Company

Question 26

What are 4 advantages of the purposive approach?

Answer 26

- Gives effect to parliaments true intentions - The rule makes extensive use of extrinsic and intrinsic aids tyo ensure an accurate and informed view of parliaments intention is established - It avoids all the absurd, unjust and harsh outcomes of the literal approach and avoids the destructive analysis of language - Judges can fill in any gaps in the law left by parliament on dealing with new situations/technology

Question 27

What are the 4 disadvantages of the purposive approach?

Answer 27

- Constitutionally this approach allows the greatest judicial freedom and some critics would argue that it goes directly against the doctrine of separation of powers and supremacy of parliament - Can only be used if parliaments intention can be identified - Whilst it's suited t the interpretation of European law, it's less suited to the more precise detailed structure of English legislation - It may be time consuming to find parliaments intentions