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STATUTORY INTERPRETATION

What is the aim and why is it necessary?

Statutory Interpretation is there to help judges with general words Parliament has passed, as some words can have different meanings.

Words very often have more than one meaning i.e. they can be ambiguous A broad term may be used in a statute which can give rise to confusion and

uncertainty

There may be errors or omissions when the statute is drafted

New developments in society can make the words used in a statute out of date and they may no longer cover the current situation rule courts will give words their plain meaning, even if the result is not very sensible.

Words are an imperfect means of communication

Define the following rules of interpretation.

Provide relevant case example to illustrate each, + strength/ weaknesses of each. (Know very well!)

Literal Rule

Under this rule words are given plain and ordinary meaning. The rule developed in the early 19th century and has been the main rule applied ever

since then.

It has been used in many cases even though the result has made nonsense of the law.

This is illustrated in Whiteley v Chapell (1868); where the defendant was changed under a section which made it an offence to impersonate ‘any personnel entitled to vote’. The defendant 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 literal meaning of the words; ‘entitled to vote’.

Other cases include Cheeseman and Fisher v Bell

Golden Rule

Provides that if in exceptional circumstances the literal rule produces a wholly unjust result, the meaning of words may be altered to avoid that result. This rule has been used in two sorts of cases:

* The Narrow Application: Where words are capable of having more than one meaning the meaning which is least absurd should be used R v Allen (1872) Where the words of statutes are ambiguous and it is very hard to see which meaning is appropriate.

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* The Wider Application : This is used to avoid a repugnant result Where words have only one meaning but to give them that meaning would be wholly unacceptable.Re Sigsworth (1935)

Mischief Rule

(Know the four point procedure here).This rule was first set out in Heyon’s Case (1584). It gives judges considerably more discretion than the other two rules. In its modern form the rule has 4 stages:

1. What was the common law before the making on the act?2. What was the mischief and defect for which the common law did not provide?

3. What was the remedy the parliament hath resolved and appointed to cure the disease of the commonwealth?

4. The true reason of the remedy. Then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy.

The role of the judges is then to give words a construction that would deal with the problem and implement the remedy.Case: Smith v Hughes (1960) to interdict section (h) of the Street Offences Act 1959.

Purposive Rule (how different is this from mischief too?).

This is more concerned with the spirit and the intended purpose of legislation than the precise meaning of the language used in legislation, and allows judges to go further than the mischief rule.

The champion of this approach, Lord Deaning stated in the case of Magor and St Mellons v Newport Corporation (1950), “We sit here to find out the intention of Parliament and carry it out. We do this by filling the gaps and making sense of the Act”.

Cases: R v Registration Genera, ex parte Smith (1990); R (Quintavalle) v Secretary of State (2003).

The advantage and disadvantages of the purposive approach

1. An advantage of the purposive approach is that it leads to justice in individual cases.

It is a broad approach which allows the law to cover more situations than applying words literally. This means it can fill in the gaps in the law.

2. The purposive approach is particularly useful where there is new technology which was unknown when the law was enacted.

This is demonstrated by R (Quintavalle) V Secretary of State (2003), the House of Lords used the purposive approach in deciding that organisms created by cell nuclear replacement came within the definition of ‘embryo’ in the Human Embryology and Fertilisation Act.

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If the literal approach had been used in this particular case, Parliamnet would of had to make a new law to deal with the situation.

3. However using the purposive approach does have some disadvantages.

It makes the law less certain. It also allows unelected judges to ‘make’ law as they are deciding what they think the

law should be rather than using the words that Parliament enacted.

Another problem with the purposive approach is that it is difficult to discover the intention of Parliament. There are reports of debates in Hansard, but these give every detail of debates including those MP’s who did not agree with the law that was under discussion. The final version of what Parliament agreed is the actual words used in the Act.

It also leads to uncertainty in the law. It is impossible to know when judges will use this approach or what result it might lead to. This makes is difficult for lawyers to advise clients on the law.

Rules of language are the following.

Define each and provide case example of each to illustrate.

Ejusdem generis rule

This means that where particular words are used in a statute, (for example: ‘pen, pencil, crayon, felt tip pen’), and these words are followed by general words (for example: ‘writing instrument’), the general words are defined by reference to the particular ones. So, in the example given, chalk would not be a writing instrument as it is not used to write on paper.

This can be seen in Powell v Kempton Park Racecourse (1899); where the defendant was charged with keeping a ‘house, office, room, or other place for betting’! He had been operating betting at what is known as Tatlers adl’s Ring, which is outdoors. The court decided that the general words ‘other place’ had to refer to indoor places since all the words in the list were indoor places, and so the defendant wasn’t guilty.

There must be at least two specific words in a list before the general word or phrase, for this rule to operate.

Expressio unius est exclusio alterius rule

This phrase means ‘the mention of one thing excludes others’. Where there is a list of words but no general words follow after them, the –ine Act only applies to the particular items mentioned.

This can be illustrated by the case of Tempest v Kilner (1846). In this case, the court had to consider whether the Statute of Frauds 1677 applied to a contract for the sale of stocks and shares; the list ‘goods, wares and merchandise’ in the Act wasn’t followed by any general words. The court held that the statute didn’t, and therefore concerned stocks and shares.

Noscitur a sociis rule

This phrase means that a word is known by the company it keeps.

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The effect of this rule is that a word takes on meaning from other words around it.

This can be illustrated by the case of Inland Revenue Commissioners v Frere (1965). In this case, a section of an Act set out rules for ‘interest, annuities or other annual interest’ (an ‘annuity’ is an investment entitling the investor to a series of equal annual sums).

Did the first word include interest paid monthly or daily? The court held that only interest paid annually was affected by the Act.

Extrinsic Aids- define. Examples?

Extrinsic aids to interpretation are those found outside the actual Act. The following extrinsic aids have been regarded as acceptable:

1. Dictionaries and legal textbooks

Dictionaries are an obvious tool to assist with the literal rule.

2. Other statutes.

Earlier Acts have relevance in tracing the mischief that an Act was designed to tackle. The interpretation Act 1978 defines particular terms that are found in a range of

statutes.

3. Reports of the Law Commission and other law reform bodies

An Act is often preceded by an investigation by one of the bodies set by the government to investigate options for referring the law. These bodies produce reports on their finding and recommendations, which the government may adopt in a Bill.

4. International treaties

It is presumed by the courts that Parliament doesn’t legislate in a way that would be a clear breach of a treaty signed by the UK government.

5. Explanatory notes

Acts passed since 1999 have been accompanied by explanatory notes. These notes summarise the main provision of the Act and explain the background to … The government department responsible for the legislation writes them after the Act has been passed. For this reason, they should be regarded as extrinsic aids. The Fur Trade Act 2000, for example, though it is quite a short Act has an explanatory note some eight pages long. This explains the main purpose of the Act (‘to prohibit fur farming’), as well as summarising and commenting on the various sections. It also states where discussion of the Bill can be found in *Hansard. Explanatory notes are written in much more readable language than Acts. Between 1999 and April 2003, there were no cases in which their use was considered. As a result, the way in which judges might use them is not yet clear.

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Intrinsic Aids- define; examples?

Whatever approach is used, clues to interpretation can be found within the statute itself. These clues are known as internal or intrinsic aids. The following are permitted intrinsic aids:

1. The long and short title

Acts are often created with a brief title and an alternate, more detailed one. It is well established that the long title may be used to provide clues to the meaning of words within the Act.

2. The preamble

Where there is one, a preamble is an introduction to the Act that may *provide* an indication of its purpose. The Fur Trade 2000 commences with the following words: “An Act to prohibit the keeping of animals solely or primarily for slaughter for the value of their fur; to provide for the making of payments in respect of the related closure of certain businesses; and for connected purposes”.

3. Marginal notes and headings

Marginal notes and heading summarise the effect of sections of an Act where the wording of either marginal notes or headings seem to have a contradictory meaning to the wording of the main body of an Act, the wording of the main body of an Act should be followed. Marginal notes and headings are inserted when Act goes for printing during its progress through Parliament; so are a little unreliable as an indication of Parliament’s will.

4. Schedules

Schedules are extra details, a kind of appendix, which elaborate on the main sections of an Act. For example, Section 1 of the Postal Services Act 2000 set up a Postal Services Commission to ensure the provision of a universal postal service. Schedule 1 of the same Act sets out how many people the Commission consists of and how they are appointed.

5. Interpretation sections

Quite often Acts of Parliament specify exactly what meaning is to be given to a particular word or phrase. In many Acts, interpretation sections set out lists, sometimes quite long ones, of what meanings are intended for certain words used elsewhere in the Act.

Statutory Tools

Explanatory Notes

Legislators have sought to overcome the potential problems associated with statutory interpretation, by drafting statutes that include explanatory notes. This is a relatively new concept, introduced by Parliament in 1999 to originally assist in the interpretation of bills. The significance of explanatory notes as helpful tools to help in the process of statutory interpretation was highlighted in the decision in R (Westminster City Council) v National Asylum Support Service (2002). Lord Steyn mooted that, ‘the Explanatory Notes cast light

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on the objective setting or contextual scene of the statute… such materials are therefore always admissible as aids to construction’.

Statutes may also include sections dedicated to the interpretation of particular provisions. These sections may be presented in the form of definitions or examples. As an illustration, the Theft Act 1968 offers a definition for the term ‘theft’, in addition to a section that defines ‘property’.

The Title and Headings of a Statute

A broad title may also aid the process of statutory interpretation. It was stated by Lord Simon in the Black-Clawson Case (1975) that, irrespective of the information contained within a statute, the ‘plainest of all the guides to the general objectives of a statute’ is the title. In a similar manner, a heading will often introduce, and clearly state the subject matter for a particular provision or chapter.

The Preamble and Side Notes

It is often the case that a statute has been drafted using ellipsis, whereby its content is sometimes difficult to interpret. A court therefore may refer to the preamble for further guidance when interpreting the statute, as it will be written in prose.

Although a court will not concentrate on the content of a side note, it will however be used to shed light on a provision, which is ambiguous or imprecise. It is evident that the process of statutory interpretation enables a reader to utilise all areas of a statute.

Punctuation and Grammar

Punctuation is an essential feature that may affect the way in which a statute is read. The case of Sir Roger Casement (1917) required the statutory interpretation of the Treason Act 1351. The statute purported that, ‘If a man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm or elsewhere’, he would be found guilty of treason. Casement argued that he carried out his acts ‘elsewhere’ and not within the realm. This argument failed as the Court found that the use of a comma meant that an individual was liable for treason for acts committed ‘in the realm, or elsewhere’. Casement was therefore liable under the Act and given the death penalty.

External Sources used in Statutory Interpretation

If the information within a statute is insufficient or imprecise, a court may refer to external sources. A judge may consider the overall history of a legal area to determine how more recent legislation should be interpreted (see Redrow Homes v Bett Brothers (1998)). This is an inherent feature of the common law, as a judge will utilise previous decisions that draw on statute(s) which are relevant to his case. There may also be other statutes that are in pari material. This could be a statute, which primarily concerns a different legal area, but offers some assistance with a particular element of the case facts.

The Interpretation Act 1978 helps make sense of grammatical issues, and language interpretation for statutes and acts of Parliament. For instance, if an act uses the word ‘may’,

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this will be considered permissive. On the other hand, where an act uses ‘shall’, this will be interpreted as imperative. Definitions for common provisions such as ‘land’, are also included to help with statutory interpretation.

International Conventions will be acknowledged and adhered to when statutory interpretation takes place. In the case of Fothergill v Monarch Airlines Ltd (1980), the court referred to the original Warsaw Convention for further interpretative help.

It is not uncommon for the courts to draw on the view of academic experts. This may be the case for example, where academics fabricate scenarios of how the law should be applied – where the statute itself fails to provide an example. Although this may not be binding, it may be used to bolster an argument (R v Shipuri (1987)). Where a statute omits a definition or explanation of how a key term should be interpreted, a dictionary may be used to give a general insight.

Law Commission Reports and White Papers

The comprehensive studies conducted by the Law Commission are often useful sources of information in statutory interpretation. The Black Clawson Case (1975) made it permissible for judges to refer to these reports to expose issues which may not be considered in legislation. Further clarification concerning the use of Law Commission reports in statutory interpretation was provided in Davis v Johnson (1978). The Court said, ‘the report may be used to identify the mischief the legislation is intended to remedy but not to construe the enacting words’. Government White Papers are sometimes included, particular if the law in that particular area is subject to review or change.

Hansard

This is the official Parliamentary Report which details the discussions when the Act in its development stages. Since 1992, Hansard has been a feature in court dialogue, and often provides more general and broader considerations that may have not been included in the Act. In Pepper v Hart (1993), the House of Lords held that judges would be allowed to use Hansard in statutory interpretation. However, Parliamentary discussions may also confuse matters due to the general nature of the discussions.

European Union Law and the Purposive Approach

European Union law has had a resounding impact on statutory interpretation. English courts are required to interpret Community law with regard to the explicit wording and intention. This approach stems from the case of Marleasing v LA Commercial (1992), establishing the Marleasing Principles. However, the Court of Appeal clarified the position with statutory interpretation stating:

‘The interpretation of legislation under…the Marleasing principle may involve a substantial departure from the language used though it will not involve a departure from the fundamental or cardinal features of the legislation. It is possible to read the legislation up (expansively) or down (restrictively) or to read words into the legislation’.

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However, in the case of Webb v EMO Air Cargo (1993), the House of Lords held that the statutory interpretation of European legislation must be carried out ‘without distorting the meaning of domestic legislation’.

Many European countries adopt a purposive approach to statutory interpretation. This approach enables the courts to skirt around a language issue and employ what they consider is the purpose of the statute. It is becoming increasingly more common for the UK courts to move towards this, particular where statutory interpretation of European Union legislation takes place. However, the English courts are wary of the purposive approach, exercising caution so that the statutory interpretation does not distort the meaning of a statute. As stated by Lord Denning ‘We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis’.

The European Convention of Human Rights

The full extent of the European Convention of Human Rights is yet to be realised where statutory interpretation is concerned. Section 3 of the Human Rights Act 1998 provides that, ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’.

There has been much debate over the significance of this provision on statutory interpretation. Although the courts have a duty to read this provision in a manner that is compatible with the Act, there are very few examples of its application.

Presumptions?

Courts will make certain presumptions about the law; unless the relevant Act makes it that the presumption is not meant to apply. The major presumptions are as follows:

It is presumed that the common law will apply unless the Act makes it plain that the common law has been changed.

It is presumed that criminal offences require intention i.e mens rea to commit the offence; not just the physical process of committing it. Sweet v Parsley (1970)

It is presumed that the Crown will not be bound by any statute unless the statute expressly says so.

It is assumed that legislation doesn’t apply retrospectively. So, a new set doesn’t change the legal position of people in relation to events that took place before the date the Act takes effect. e.g. War Crimes Act 1991

Final Thought

In consideration of this overview, statutory interpretation is an extremely dynamic and demanding process. When reading a statute, it is worth putting yourself in the shoes of a Parliamentary draftsman to understand the real intention and effect of their work. It is inevitable that mistakes will be made and clarity will be sought. These factors make statutory interpretation an essential skill of judgment.

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