In the English law there are three rules that exist to assist a court in the interpretation of an Act of Parliament. These rules are the most common approach in examining the meaning of the language used or the application to which the statute was intended or a combination of both. Without these rules the reader of the statute would not be able to interpret what they mean and how they are meant to apply to a particular situation in a variety of circumstances of a modern and changing society. Therefore the reader has to apply what is known as statutory interpretation. These rules for examining the wording of the particular statue and the most common approach of interpretation are known as the Literal rule, golden rule and mischief rule.
The literal rule takes precedence over the others and states that the words in the statute must be interpreted to mean exactly what they say, however absurd or unfair the conclusion. This rule is based on the doctrine of parliamentary supremacy; Judges are not allowed to make the law. To avoid allegations of law making, Judges often stick to this rule and take the literal meaning of the statute. The rigid use of this rule creates loopholes and has the potential to defeat parliament’s intentions when writing the statute. Cases where an absurd precedence has been set will then require parliamentary time to correct.
An example of literal interpretation in action and leading to absurdity can be seen in the case of R v Harris (1836) 7C & P446 a statute made it an offence to ‘stab, cut or wound’ another person. Harris bit of her friend’s nose in a fight, and then the policeman’s finger. Harris was not found guilty on basis that the words in the statute pointed towards the use of a weapon and teeth are not considered a weapon.
The literal rule is often criticised when absurd outcomes are reached as in R v Harris and it does appear to be a rule against using the reader’s intelligence and common sense. But if the rule did not exist, then the courts would have the power to interpret each statute, as they like affectively allowing the Judge to re-write the Act of Parliament. This is not how the English legal system should work.
The literal rule also involves two subsidiary rules. The first is noscitur a sociis rule which means that the meaning of the word must be determined by its context. For example ‘to read a book’ or ‘to book a room’
The second is ejusdem eneric, which means that any general term is dependant on any specific terms, which precede it. For example if a law refers to automobiles, trucks, tractors and motorcycles, then the term “vehicles” would not include airplanes, since the list was of land-based transportation.
The Golden Rule
This rule can be described as a shadow of the literal rule and should be used as a backup if the literal rule produces absurdity. It tells the reader of the statute to read the word in the context of the sentence as a whole and tries to assess what it was that parliament was trying to do when writing it. The rule can be applied in two ways.
Firstly if there is ambiguity in the meaning of the words of the statute, then preference will be given to the word, which does not result in absurdity.
Secondly it can be used to modify a word that has only one meaning in order to avoid an absurd outcome.
The Mischief Rule
The mischief rule attempts to determine the legislator’s intention and is used to interpret a statute that was passed to remedy a common law loophole (mischief). The courts use this rule to decide what loophole the statute was intended to correct or close and in doing so the courts go beyond the words of the statute to ascertain what loophole the statute was set out to remedy. This rule was used in Heydon’s Case (1958).
In applying this rule the court will consider four principles:
What was the common law before the rule was passed?
What solution was offered by parliament?
What is the true reason for the Solution?
What was the mischief the law did not solve?
Take for example Corkery v Carpenter (1951) 1 KB 102, (1956) 2 ALL ER 745. A person was in charge of a bicycle whilst drunk. It is an offence to be drunk in charge of carriage. The court held that a bicycle is a “carriage” the mischief was drunks on the highway being in charge of transport. It would have produced an absurd result if the literal interpretation of the statute had been used.
Intrinsic aids are matters contained within the statute itself. They help judges understand the meaning of the statute more clearly. The court may consider:
The long title.
Extrinsic aids are matters found outside of the statute which may be considered by judges to help them understand the meaning of a statute more clearly. Again the court may consider:
Earlier case law.
Law commission report.
An example of a case when both intrinsic and extrinsic aids were used is Madla v Dowell-Lee (1983) 2 AC 548 The statute (intrinsic aid) defined ‘race’ as including ‘ethnicity’ – but what does that mean? House of Lords used a dictionary (extrinsic aid) and decided ‘ethnicity’ refers to a long shared history from a particular region. Hence, the ratio from Mandla v Dowell Lee now binds lower courts in relation to what ‘ethnicity’ means.
Delegated legislation stems from an enabling Act of Parliament, which authorises someone else other then parliament to make laws on certain matters. These powers are most often delegated to Government ministers, but may also be delegated to local governments, professional bodies, public bodies and various other organisations and individuals.
There are several reasons why Parliament delegates legislative powers out to originations and individuals. The main reason is that Parliament does not have the time and resource to debate every new piece of legislation that needs to be passed. Laws such as Building regulations require considerable technical expertise from within the construction industry itself and could not possibly be made by Members of Parliament who have no knowledge of construction. Further to this, delegated legislation such as health and safety regulations can be made quickly in order to stop any further accidents. Delegated legislation is often exercised by Statutory Instruments and the legislations may be called Regulations, Orders, Rules or sometimes something else. Byelaws are another type of delegated legislation and are not made by statutory instrument; instead local authorities make them and other bodies authorised by statute. This allows local authorities to make regulations that are binding on persons within their district for the greater good of their district. Powers of making byelaws are contained in a large number of statutes, particularly acts made in the mid-19th century which touch on matters of public health and safety. An example of such legislation includes the Towns Improvement Clauses Act 1847. There is no common law for ministers and organisations to consult external experts before making regulations but it is common practice. This allows experts from outside the Government the opportunity to point out any obvious flaws in the legislation and gives them chance to influence its content.
Parliament chooses how extensive delegated legislative powers are by setting out rules in the enabling act and having a number of safeguards to stop abuse. These controls over delegated legislation are essential in order to avoid authorities abusing their powers. For example Strictland v Hayes Borough Council (1986) where a bylaw prohibiting singing or reciting of any obscene language generally was held to be unreasonable and as a result the passing of this delegated legislation was rejected. Fortunately there are safeguards in place allow delegated legislation to be controlled by way of both parliamentary and judicial control. Initially, parliament has control in that the parent Act passed by parliament sets out the parameters for the legislation. In addition, there are committees set up by houses of parliament whose role is to consider the delegated powers proposed. These committees are called scrutiny committees; however they do have limited power. Some statutory instruments will be subject to affirmative. This will mean that the statutory instrument will have to be approved by parliament before becoming a law. Other statutory instruments are subject to negative resolution, which means that they will become law unless rejected within forty days of being laid before parliament. Delegated legislation can also be controlled by the courts whose judges can declare a piece of delegated legislation to be ultra vires. Ultra vires means ‘beyond powers’ so the courts would be saying that a piece of delegated legislation went beyond the powers granted by parliament within the enabling Act as in the above case of Strictland v Hayes Borough Council (1986). If the court does this then the delegated legislation would be void.
Delegated legislation is used in many areas of the construction industry for a varied of reasons. An act is first passed by parliament and then delegated to experts in the specific areas of construction enabling the creation of regulations enacted by Statutory Instruments or through codes of practice. Whether or not this is seen to be completely effective is open to opinion. Below are some of the main Acts that affect the construction industry.
In the past local authorities were given the powers by delegated legislation to create their own building bye-laws but this created no uniformity across the country as local authorities rejected Building Bye-law models produced by the government. In an effort to achieve uniformity and to take into account advances in technology, the Public Health Act 1961 was introduced. This Act made changes to the law relating to building control as it removed from local authorities the power to make building byelaws. The new procedure empowered the Government to make national Building Regulations. The Building Regulation describes in detail, the standards of construction that must be adhered to when carrying out construction. They are in place to ensure a reasonable standard of health and safety for people in or about the building and others who may be affected by any failure to comply. In 1985 a major overhaul took place following the introduction of the 1984 Building Act. This then opened up competition in the field of Building Control, and developers were given the option to use the services of the local authority or an Approved Inspector. This was seen as a move in the right direction for the building industry as Building Regulations are fairly adaptable and allow innovative design whilst meeting adequate levels of safety.
The Health and Safety at Work etc. Act 1974 lays down general principles for the management of health and safety at work, enabling the creation of specific requirements through regulations enacted as Statutory Instruments or through codes of practice. For example, the Control of Substances Hazardous to Health Regulations 2002 (COSHH), the Management of Health and Safety at Work Regulations 1999, the Personal Protective Equipment (PPE) at Work Regulations 1992 and the Health and Safety (First-Aid) Regulations 1981 are all Statutory Instruments that lay down detailed requirements.
There are many advantages of delegated legislation in the construction industry. The delegated legislation spoken about in the above is accepted as not only a necessary evil but to provide positve advantages to the construction industry. It saves Parliamentry time that can then be used for more pressing matters. Take for example, The Building Regulations, these constantly change and update all the time with uncontroversial information. There would be nothing gained from debating these in Parliament or from six-hundred MPs and three-hundred or so peers to read the draft regulation each time it changed. It allows parliament to concentrate on broard issues of policy rather than masses of detail. The Health and Safety at work etc. Act 1974 includes a general requirement to the provision and use of protective cloathing or equipment, but left the Health and Safety Executive to draw up detailed regulations as to the type cloathing or equipment required. The Personal Protective Equipment at Work Regulations 1992, contains details about the requirements.
Delegated legislation allows technical matters to be determined by those competent to do so, and makes use of expert knowledge that may not be available in parliament. The Building Regulations contains highly technical information on foundation design to be adhered to when constructing a building. Members of Parliament just would not posses the technical expertise to draft such regulations.
There are also some disadvantages of delegated legislation in the construction industry. The major criticism with delegated legislation is that the law making is taken away from parliament who was democratically elected by the people. Further to this the power to make law is given to unelected individuals and then sometimes again through sub-delegation. Some in the construction industry may consider this to be very un-democratic especially if any decisions made affect them in an adverse way.
The limited scrutiny given to delegated legislation can often lead to incomplete or imperfect instruments passing into law. For example the building regulations Approved Document Part C (Resistance to contaminants and moisture) states that ‘if the wall is an external wall, the damp-proof course should be at least 150mm above the level of the adjoining ground’ whilst Approved Document Part M (Access to buildings other than dwellings) states that ‘an approach incorporating ramped access should be provided’. These two statements contradict each other.
Delegated legislation can be difficult to locate, as there is nothing in the parent Act to show how many statutory instruments have been made underneath it, there is also no subject index’s to statutory instruments on the internet as found whilst researching the above. For local bye-laws the information available to track them down is almost non existent especially to the general public. This means there is no easy way of knowing what bye-laws have been made in what areas. This can cause huge problems in the construction industry. For a example a developer may purchase a plot of land they wish to build on, only to later find out that there is a right of way running straight though the middle of it. This then takes time and money for an agreed resolution and if this can not be reached the courts will then be involved.
In conclusion, delegated legislation is necessary for many reasons, it allows faster and more specific or technical legislation to be created that would not otherwise be possible for parliament as they would lack the time and relevant knowledge. However, delegated legislation does need to be controlled as it is created by unelected individuals who may wish to abuse the power.
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