The flawed rules of statutory interpretation

“The reality is simple - the flawed rules of statutory interpretation such as the Literal Rule and Golden Rule have been cast aside. It is the ‘purposive' approach to interpretation that is now paramount and this is entirely correct.”

Do you agree with this statement?

The distinction between knowledge and opinion always raises the question of justice in Law. Socrates talked of ‘true opinions which can be aroused by questioning and turned into knowledge'. In the Meno he explains:' True opinions are fine and useful as long as they stay with us; but they do not stay, and they depart from the mind. So they are not of great value until you fasten them down by working out the reason why. Once they are fastened, they become knowledge and then they are more permanent. Hence knowledge is a finer and better thing than true opinion, since it is secured by a chain' (Meno, 98a 1-5).

The fact that the judges have to use variety of different approaches to interpret statutes makes it problematic for the society to accept that the chosen approaches are the appropriate ones under different circumstances. Often judges are likely to have numerous opinions on the meaning of a certain statute depending on their approach of being either a formalist or realist. As the combination of lexical and structural ambiguity can lead to a statutory provision with more than one meaning or the new developments in society can make the words used in a statute out of date and they may no longer cover the current situation, the assumption of no certainty on the main purpose of an imperfectly drafted statute is usually raised. For this reason judges use statutory provisions to support and secure their opinions on interpretation of statutes to make them clearer.

It is estimated that in the Court of Appeal 2/3 of all cases requires statutory interpretation (SI) and in the House of Lords, virtually every case requires it. There are several ways judges can carry out SI, they have intrinsic and extrinsic aids to help them, and they can also use Presumption, however, judges often use the three rules of construction. These rules, also known as 'canons', would be better described as choices rather than rules, as the judges can use whichever rule they want, to reach the outcome they want. The first rule of construction is the Literal Rule, which means, as Lord Esher stated, 'if the words of an act are clear, you must follow them even if they lead to a manifest absurdity.'

A famous example of applying this rule is found in the case of Fisher v Bell where the legal meanings of the words were used to interpret a statute. The difficulty was to interpret the word ‘offer'. Lord Parker CJ decided that the shopkeeper was not guilty of the offense with which he was charged because the displaying of the knife in the shop window was merely an invitation to treat and the shopkeeper had not thereby offered the knife for sale, within the meaning of s. 1 (1) of the Restriction of Offensive Weapons Act of 1959.

The Law Commission described the golden rule as "a less explicit form of the mischief rule", because it requires that words be interpreted in the light of their effect.  However, it is based on the literal rule and should only be used if the literal rule would lead to absurdity or ambiguity - the question is how absurd or ambiguous must the meaning be before the golden rule is adopted?  The answer to that question is that it depends upon the judge concerned, which means that the application of the golden rule is erratic and it is very hard to predict what meaning will be assigned to any given word.

In the case of R v Allen concerning the application of s 57 of the Offences against the Person Act 1861, the court interpreted the words ‘shall marry' as if they said ‘shall go through the ceremony of marriage' because if the ‘marry' had been interpreted literally the offence could never been committed, since no one married could never marry another.

Re Sigsworth (1935) concerned a case where a son had murdered his mother. The mother had not made a will and under the Administration of Justice Act 1925 her estate would be inherited by her next of kin, i.e. her son. There was no ambiguity in the words of the Act, but the court was not prepared to let the son who had murdered his mother benefit from his crime. It was held that the literal rule should not apply and that the golden rule should be used to prevent the repugnant situation of the son inheriting.

The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to depend on the result of each individual case. Whilst the golden rule has the advantage of avoiding absurdities, it therefore has the disadvantage that no test exists to determine what an absurdity is.

The third rule of construction is known to be the mischief rule which was first used in Haydon's Case where it was stated that there are four factors to be considered when interpreting a common law; these factors were concerned about the common law before the making of the act, the ‘mischief and defect' for which the common law did not provide, the remedy that the parliament hath resolved and appointed to cure the disease of commonwealth and the true reason of the remedy.

The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature.

The rule was illustrated in the case of Smith v Hughes, where under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street." The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes, even though under a literal interpretation they would be in a private place. Lord Parker CJ stated:

“Observe that the Act does not say there specifically that the person who is doing the soliciting must be in the street.  Equally it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street.  For my part, I approach the matter by considering what is the mischief aimed at by this Act.  Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone.  I think that the magistrate came to a correct conclusion in each case, and that these appeals should be dismissed.”

On the face of it, there was no ambiguity in this provision. Quite clearly, the offence Of “loitering” could only be committed if the prostitutes were actually in a street or public place; and, on a natural reading of section1(1), it seemed equally clear that the offence of “soliciting” could only be committed if the prostitutes were physically in a street or public place.

However, the purposive approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of Appeal stated: ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis'.

This attitude was criticised on appeal by the House of Lords. Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation'. He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act'.

These comments highlight one issue with the purposive approach. How Parliament's intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries when interpreting their own legislation. It is also the approach which is taken by the European Court of Justice in interpreting EU law.

Since the United Kingdom became a member of the European Economic Community in 1973, the influence of the European preference for the purposive approach has affected the English courts in a number of ways. First, the courts have been required to accept that, from 1973, the purposive approach has to be used when deciding on EU matters. Second, as they use the purposive approach for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic law. One example is Pickstone v Freemans plc (1998). Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the 1970 statute. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.

Paul Helm, a Professor of History and Religion, makes a statement:

“I take it that a literal approach has the best chance of preserving truth.”

However the fact that the literal rule maintains that Judges do, and should approach hard cases as textual formalists, it opens criticisms such as the incompletion of it while the deficiency appears if we consider the prescriptive aspect of the literal rule. Sometimes it also misprescribes judicial deference to legislative enactment. This approach is usually preferred by conservative judges and avoids any discrimination or personal opinions on applying the statutes.

The courts have recently integrated the traditional approaches to the interpretation of statutes and respect the actual words used but rather than stick rigidly to them, interpret them in the context in which they appear, and the underlying purpose of the statute. Therefore by going back to the title of this essay it had been concluded that if the statute is unambiguous, the interpretation rule must be applied literally and if it is ambiguous the judge should determine the legislative intention of the statute. The court should look at the Act as a whole; often the way in which a word is used in other parts of the Act make it plain what it is intended to mean. If the meaning is still not clear, the court should try to discover from the wording of the Act what ‘mischief' the Act was designed to deal with, and will try to interpret the words so as to give effect to what the Act was intended to achieve. Therefore none of the rules of the statute interpretation are to be considered as flawed and by applying only one particular approach in every single Act, the true meaning and purpose of the parliamentary Acts may be disregarded.

Bibliography

  • E.Finch and S.Faninski, Legal Skills (2nd edn OUP, Oxford 2009)

  • J.N. Adams and R.Brownsword , Understanding Law (4th edn, London Sweet&Maxwell 2006)

  • J.Cottingham, Western Philosophy (2nd edn, Blackwell 2008)

  • S.B Marsh and J.Soulsby (8th edn, Nelson Thornes 2002)

  • Lexisnexis.co.uk

  • OPSI.gov.uk

  • Weslaw.co.uk



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