Category : Articles
Question One ??“ Part A
Statutory Interpretation is not a straight forward task for many reasons. When interpreting the law, different people can interrupt and understand things in different ways. It is difficult to apply the law because of how language changes. The draftsman may use a broad term (word, phrase) and expect the user to understand what situation fall within it. Ambiguous words may also be used and some words actually have more than one meaning. This therefore causes problem and is difficult to know what the statute is implying. This is why a written record is the best way to ensure certain obligations are carried out.
There are specific aids and approaches to interpreting the statute law. The Interpretation Act 1978 defines many common terms, and it provides that its definitions are to be used in continuing any Act that contains the words defined (unless a subsequent Act defines them differently); it also provides a rebuttable presumption that words in the singular shall include the plural and words in the plural shall include the singular. (S 6 of the Interpretation Act 1978).
Also The Human Rights Act 97 provides new cannon of statutory interpretation with the European Convention on Human Rights. Modern Statues also include ???definition sections??? in which meaning of words, phrases found in the statue are explained. Headings and side notes can also be found to help clarify the meaning of ambiguous words. (All private and old public acts have long titles). All acts have preambles. Fisher V Raven 1964 long title was used to decide that debtors for the purposes of Act were ordinary debts.
Judicial Interpretation is not regulated by parliament but has been developed by the judges. Limited help, such as rough drafts of Acts, are done by parliament to minimize the amount of the interpretation that is necessary. Although judges in the past have often been strict literalists, it is rare to find a judge that adheres to any one rule, and free to decide and choose in order the most appropriate to the case in hand. Judges have to be given a degree of flexibility if they are to cope with unforeseen situations e.g. Att. General v Edison Telephone Company.
The most important rules of interpretation and various presumptions are; the literal rule, the golden rule, the mischief rule, the purposive approach and rules of language.
The literal rule is the first approach that is taken according to their literal meaning. Basically if words of the statute are clear and unambiguous, the court gives them its ordinary plain meaning, regardless of the result. Where a literal interpretation produces an absurd or perverse decision, it is up to the parliament to put matters right and not the job of the non-elected judges. E.g. Fisher v Bell (1960). One of the main advantages of the literal rule is that it encourages precision of drafting. On the other hand the literal rule was criticized by the Law Commission (1969) for its disadvantages. The major disadvantage is perfect drafting is impossible and it is not useful when broad terms are deliberately used. Individuals that often speak of dictionary words in the question, however dictionary words give a number of alternative meanings. It basically ignores limitations of language. E.g. London and North Eastern Railway v Berrimen (1946).
The golden rule is a modification of the literal rule. It begins by applying the literal rule where words of statue are capable of two or more meanings, however, judges must adopt the interpretation which produces the least absurd result. (Some judges even argue that the golden rule can be applied where words only have one meaning, but a literal interpretation would lead to absurdity.) There are two applications to the golden rule; the narrow application, where words are more than capable of having a variety of meanings and the wider application which is used to avoid a decision that to some can seem unacceptable or repugnant. The golden rule has the tendency top produce ???common sense??? results. However, it sometimes provided no cleat mean to test the existence of the characteristics of absurdity, inconsistency or inconvenience or to measure their quality or extent. E.g. Alder v George (1964). Basically meaning that it is applied incorrectly and the word is altered too much.
The mischief rule which derived from Haydon??™s case (1584) where it was stated for the true interpretation of all statues, four main points are to be considered: what was the common law before the making of the Act, what was the mischief and defect for which the existing common law did not provide, what remedy parliament resolved and appointed to cure the disease and the true reason of the remedy and then the function of the judge to make such constitution as shall suppress the mischief and advance the remedy. E.g. Smith v Hughes (1960). According to the Law Commission (1969) the mischief rule was regarded as the ???satisfactory approach??? than the other two established rules. The golden rule was actually condemned.
The mischief rule was the product of a time when statues were a minor source of law by comparison with the common law when drafting was by no means as exact a process as it is today and before the supremacy of parliament was established. The mischief could often be discerned from the lengthy preamble normally included. It was basically the most flexible. The only disadvantage is that this approach may encourage investigation beyond the words themselves as contained in the statue which may lead the judge to give a meaning to the act which was not intended. E.g. Royal College of Nurses v DHSS.
The purposive approach is where ???judges adopt the construction which promotes the general aims or legislative purposes underlying the provisions???. (Per Lord Denning MR in Nothan V London Borough of Narnet  1 WLR 220). It is sometimes argues that the modern purposive approach is somewhat similar to the mischief rule, because the courts are simply trying to find out the mischief of the act, but emphasizing the intention of the legislature instead of the defeat in the previous law. The approach is teleological or consequentiality and when applying it, judges are sometimes under certain criteria, allowed to refer to Hansard.
Hansard can be referred to in such situations as; the legislation is ambiguous or obscure or leads to an absurdity, the material relied upon consists of one or more statements by a minister or other promoter of the bill or if the statements relied upon are unclear.
The contextual approach made by Sir Rupert Cross, suggested that the English approach does not include a choice between alternative rules as progressive analysis in which the judge first consider the ordinary meaning of the words in the general context of the statute, a broad view being taken of what constitutes the ???context??? and then moves to consider other possibilities where the ordinary meaning leads to an absurd result. This unified ???contextual??? approach is supported by dictation in decisions of the House of Lords where general principles of statutory interpretation have been discussed.
There are a number of so-called ???rules of language??? which simply refer to ???the way in which people speak in certain contexts??? (Sir Rupert Cross). These include; ejusdem genreis, noscitur a socis and expressio unius est exclusion alterius.
Ejusdem generis mean there must be more than one item for it to apply. In the case of Allen v Emmerson (1944). General words following particular ones normally apply only to such persons or things (of the same genus or class) as the particular ones. Powell v Kempton Park (1899) AC 143. Expressio unius est exclusion alterius meaning that ???the expression of one or more things of a particular class silently implying the exclusion of all other members of the class.??? Tempest v Kilner (1846). ???Goods, wares, merchandise, did not include stocks and shares. Noscitur a socis, context rule which refers to the fact of woods ???deritive colour from which those surround them.??? Per Stamp J. in Bourne v Norwich Crematorium (1967). A word should take its meaning form the context e.g. Muir v Keay (1875) in which it is found.
Judges often make presumptions in applying statutes. Firstly, they presume against altering the common law, meaning that if an act is passed but not all information is included the judge presumes the common law still exists. Secondly, they presume mens rea, which means the defendant needs to be of a mental/ guilty frame of mind to be guilty of an act. There is a presumption against the imposition of a penalty without fault. Acts only apply to the UK unless contrary intention is expressed. There is a presumption against binding the Crown, a presumption against excluding the court from determining the case, a presumption against violating international law, presumption that standard common law defenses are available for new crimes, presumption that statues do not apply to offences committed abroad, presumption of compensation being paid where a statute deprives a person of property and presumption against retrospective legislation.
There are intrinsic and extrinsic aids involved with statutory interpretation. Intrinsic aids are things inside the act which assist the judge to apply or interpret the law, for example, the preamble and long title. Extrinsic aids are things outside the act which assist the judges to apply or interpret the law. For example, the judges can look at the previous acts of parliament, dictionaries and other literary sources and the historical setting.
All of these rules will satisfy access to justice.