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Published: Fri, 02 Feb 2018
Constitutional role of the judiciary
Q1 List And Explain The Four Main Approaches Which The Courts Use To Assist The Interpreting Statutes.
The constitutional role of the judiciary is the application of legislation, if the wording of the legislation is ambiguous or unclear, then its meaning will need to be interpreted. Ambiguity or lack of clarity may arise because the Act might have been poorly drafted (using generic or ambiguous terms) or does not cover all eventualities, particularly in relation to complex subject areas.
Judges use a variety of different approaches when faced with an issue of statutory interpretation. These are;
Literal Rule: This uses the plain ordinary, literal, grammatical meaning of the words of the statute; this must be applied as they represent the intention of Parliament, even though they lead to a manifest absurdity. Mainly preferred by ‘conservative’ judge who do not believe that a judge role is to create law, i.e. The application of literal rule in this case ironically went against Parliament’s intention.
Golden Rule: The golden rule provides that the words must be given their plain, ordinary and literal meaning as far as possible but only to the extent that they do not produce absurdity. Lord Zander has described this rule as ‘an unpredictable safety-valve to permit the court to escape from some of the more unpalatable effects of the literal rule’. There are two ways in which the golden rule has operated in cases ;
Narrow approach; where words are capable of more than one meaning, in which case the meaning that is least absurd should be used, i.e. The rationale behind this approach is that it mitigates some of the potential harshness arising from use of literal rule.
Wider approach; is mainly used to modify words to avoid an absurdity or to avoid a repugnant situation, but not farther; case involved using this approach, i.e
Mischief rule: This rule is used to find the gap or mischief or the role the Parliament use to find standing up or loopholes, this was first formulated in Hendon’s case (1584), which involves an examination of the former law in an attempt to deduce Parliament intention (‘mischief’ here means ‘wrong or harm’).
Advantages of the mischief rule is that it promotes the purpose of the law as it allows judges to look back at the gap in the law which the Act was designed to cover. The emphasis is on making sure that the gap on the law is filled, this is more likely to produce a ‘just’ result. In contrast, there is a risk of judicial law-making judges are trying to fill the gap in the law with their own views on how the law should remedy the gap. Also mischief rule is not as wide as purposive approach, and limited to looking back to the law prior to the Act and can make law uncertain, this could make it difficult for lawyers to advise clients on the law, i.e.
Teleological approach; it is wider in approach, to find what the Parliament was trying to achieve. It is commonly used by ECJ; it is favoured by the activists. The purpose of this approach could lead to justice in individual cases.
Q2 What Difference Does It Make That The UK Is A Member Of The EU
The European Union was founded in 1957 with six members, The UK joined in 1973 and another source of law came into being, the European law, since then it has had increasing significance as a source of law. The founding Treaty was the Treaty of Rome and is the primary source of European Union law. The most important provision relating to EC law was captioned from section2 (1) of the ECA 1972.
The function of the ECJ is to ensure that in the interpretation and application of the Treaty of law is observed (Article 220 Treaty of Rome).
A provision of EC law will be directly applicable if it automatically becomes part of a member state without the need for the member state to enact any legislation itself. Also a provision of EC law will be directly effective if it creates rights which individuals may rely upon in their national courts and are enforceable by those courts. In simple terms, Treaty Articles can be enforced directly in UK courts, regardless of any other domestic legislation.
Regulations are issued under Article 249 of the Treaty of Rome, this make the effect of regulation as ‘binding in every respect and directly applicable in every member state’. Regulations also have both vertical and horizontal effect. This means that citizens may rely on them both against the state and other private individual or bodies.
Directives are fundamentally different from Regulations. These bind any member state to which they are addressed as to the result to be achieved.
Where a directive has not been implemented, an individual who suffers as a result of the non-implementation may sue the member state for their breach of Community law. i.e.
The facts that EU law takes precedence over national law means that UK as a member of EC, Parliament is longer the supreme law-maker, invariably, domestic courts are under a duty to apply EU law in preference to national law, this was stressed when the validity of the Merchant Shipping Act 1988 was challenged as it conflicted with the Treaty of Rome. i.e.
As a result, the Treaty of Rome requires member state to take all appropriate measures- to ensure the fulfilment of the obligations under the Treaty, this encourage all member state to use the purposive approach; where a directive has been issued, national courts are required to interpret their national law in the light of the wording and purpose of the directive, there has been a gradual move towards a effectively using of the purposive approach in other cases before the English courts.
Q3 Why Do Judges Interpret Statutes?
Many statutes law are passed by Parliament each year, the meaning of the law in these statute were expected to be clear and explicit, but this is not always achieved. The following under-mentioned reasons explained why the meaning may be unclear;
Ambiguous words – using words which have two or more meanings, it may not be clear because the words were not specific enough; i.e.
Drafting error – the Parliament counsel who drafted the original Bill may have made an error which has not been noticed by Parliament; this is particularly likely to occur where the Bill is amended several times while going through Parliament, and using a Technical language/words which might have a specific legal meaning, i.e
A broad term – words may be designed to cover several possibilities, broad or general in meaning, e.g. in the Dangerous Dogs Act 1991, this is a phrase ‘any dog of type known’ as the pit bull terrier; i.e.
New technology development – new technology may mean that an act of parliament does not apparently cover present – day situations. Example, an introduction of new drugs; This is seen in the case of ; where the medical science and methods have changed since the passing of the abortion Act in 1967.
Changes in the used of language – The meaning of words can change over the years. This was one of the problems in the case of since statutory law supersede common law and is known in advance, in contrast to the judge made- law but still fear with complex uses of language.
These are rules to aid interpreting certain formats of words. If the particular format is not used it has no relevance. The rules are as follows:
Ejusdem generis – where a list of words is followed by general words, then the general words are limited to the same kind of items as those in the content;
Expressio unius exclusio alterius – the mention of one thing excludes another. Where there is a list of words which is not followed by general words then the act applies only to the items in the list.
Noscitur a sociis – a word is known by the company it keeps. Words must be looked at in their context; example of a case is
Q4 Explain The Impact The HRA 1998 Has Had On Statutory Interpretation
The European Convention on Human Rights (ECHR) was adopted by the Council of Europe in 1950 and, since 1966; UK has accepted the right of individual petition to the European Court of Human Rights. The Human Right Act (HRA) 1998 was incorporated into English law by s.1. of the convection Rights.
Section 3-6 of the HRA says that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights in the ECHR. This applies to any case where one of the rights is concerned, but it does not apply where there is no involvement of human rights.
An example of the effect of HRA on interpretation is. In this case the Court of Appeal ignored a House of Lords’ judgement about the Rent Act 1977 which has been made prior to the implementation of the Human Rights Act.
Again, section 4 Subsection (2) of the Act explains further the Declaration of incompatibility that all statutes have to comply with Human Rights Act in any proceeding in courts.
In considering Alison case, if the judge decide to apply literal approach to interpret the directive, she will not be guilty because, the words used is ambiguous; she was smoking a cigarette not cigarettes as stated in the directive. Though, the offence was committed while the directive has not been implemented, because section2 (2) of the Act shall come to effect on January 2012.
Also, the intrinsic aids which help the judge to interpret what is in the statute should be taken into consideration; when deciding a case.
The long title and the short title;
The preamble, if any;
schedules and headings
Section 2(4) of the ECA 1972 provides that the courts must use a purposive approach when interpreting EC Law; also the court should give preference to an interpretation which gives effect to the general purpose of the legislation. Considering the legal principle of her case, her appeal will be allowed.
J.Martin English Legal System (London: Hodder Education, 2008)
J.Martin English Legal System Key Facts Book (London: Hodder & Stoughton, 2001)
M.Hunt A Level & AS Level Law Book (London:Thomson &S.Maxwell,2003)
S.Fafinski & E.Finch English Legal System (Harlow: Pearson Education Ltd,2007)
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