Parliament makes the law but it is the roles of judges to interpret parliament’s words. They have a measure of discretion and creative power in the manner in which they interpret legislation. Like any other form of communication, legislation can include words that have more than one meaning, or words whose meaning changes depending on its context.
Because legislation needs to be written so that it can be effectively applied in various circumstances, there can often be a lack of clarity or precision. Language can even create legislation that is obscure, ambiguous or meaningless, failing to achieve the end at which it is aimed simply through being badly drafted. Judges in such circumstances need to provide legislation with effective meaning. There are two contrasting views as to how judges should go about determining the meaning of a statue – the restrictive, literal approach and the more permissive, purposive approach.
The literal approach: this view of judicial interpretation holds that the judges should look primarily to the words of the legislation in order to construe its meaning and, except in very limited circumstances, should not look outside of, or behind, the legislation in an attempt to find its meaning. The literal approach is dominant in the English legal system.
The purposive approach rejects the limitation of the judges’ search for the meaning to a literal construction of words of legislation itself. It suggests that the interpretative role of the judge should include, where necessary, the power to look beyond the words of statue in pursuit of the reason for its enactment, and that meaning should be construed in the light of that purpose and so as to give it effect. This purposive approach is typical of civil law systems, where legislation sets out general principles and judges fill in the finer detail. Since European Community legislation is drafted in this manner, its detailed effect can only be determined through a purposive approach to interpretation.
European community (EC) legislation tends to be drafted in the Continental manner. Its detailed effect, therefore, can only be determined on the basis of a purposive approach to its interpretation. This requirement, however, runs counter to the literal approach that is the dominant approach in relation to Community legislation and even with respect to domestic legislation designed to implement Community legislation. Thus, in Pickstone v Freemans plc (1988), the House of Lords held that it was permissible, and indeed necessary, for the court to read words into adequate domestic legislation in order to give effect to community law in relation to provisions relating to equal pay for work of equal value.
There are three traditional rules of statutory interpretation and there:
The literal rule
The golden rule
The mischief rule
It may seem that these rules form a hierarchical order this is because the golden rule is only applied if the literal rule causes ambiguity and the mischief rule is only applied where the other two rules fail. However, the wider move towards a more purposive approach to interpretation means there may be greater application of the mischief and golden rules which determine the meaning and effect of legislation.
The Literal rule: under the literal rule, the judge is required to consider what the legislation actually says rather than considering what it might mean. In order to achieve this end, the judge should give words in legislation their literal meaning – that is, their plain, ordinary, everyday meaning – even if the effect of this is to produce what might be considered an otherwise unjust or undesirable outcome. For example the Inland Revenue Commissioners v Hinchry (1960) concerned s25 (3) of the Income Tax Act 1952, which started that any taxpayer who did not complete their tax return was subject to a fixed penalty of £20 plus treble the tax which he ought to be charged under the Act. The question that had to be decided was whether the additional element of the penalty should be based on the total amount that should have been paid, or merely the unpaid portion of that total. The House of Lords adopted a literal interpretation of the statue and held that any taxpayer in default should have to pay triple their original tax bill. The essential weakness of the literal rule is the assumption that there is a single, uncontentious, literal understanding of words.
The Golden rule: this rule is generally considered to be an extension of the literal rule. In its general expression, it is used in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result. The golden rule was first states by Lord Wensleydale in Grey v Pearson (1857), but its operation is better defined by the words of Lord Blackburn in River Wear Commissioners v Adamson (1877) as follows “we are to take the whole statue and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, which, though less proper, is one which the court thinks the words will bear”. It should be emphasized, however, that the court is not at liberty to use the golden rule to ignore, or replace, legislative provisions simply on the basis that it does not agree with them; it must find genuine difficulties before it declines to use the literal rule in favour of the golden rule. How one determines or defines genuine difficulty is of course a matter of discretion and, therefore, dispute. It stated that there are two versions of the golden rule, they are:
The narrow meaning: The narrow meaning of the golden rule is used when there are two apparently contradictory meanings of a word used in a legislative provision or the provision is simply ambiguous in its effect. The golden rule gives preference to the meaning that does not deliver an absurd result.
For example, in Adler v George (1964) the defendant was charged, under the Official Secrets Act 1920, with obstruction “in the vicinity” of a prohibited area. In fact the defendant had actually carried out the obstruction inside the area. The court preferred not to restrict itself to the literal wording of the act and found the defendant guilty as charged.
The wider meaning: The wider meaning of the golden rule is used when, although there may be only one possible meaning, the court considers that a literal interpretation will result in inconsistency, absurdity or inconvenience.
For example, in Re Sigsworth (1935) the court introduced common law rules into legislative provisions to prevent the estate of a murderer from benefiting from the property of the party he had murdered.
The Mischief rule: is clearly the most flexible rule of interpretation, but in its traditional expression it is limited by being restricted to using previous common law rules in order to decide the operation of contemporary legislation. It is also paradoxical that this is the most venerable rule, originally set out in Heydon’s Case (1584), is also the one which most obviously reveals the sociopolitical nature of judicial decisions. In Heydon’s Case, it was stated that in making use of the mischief rule, the court should consider the following four things:
What was the common law before the passing of the statute?
What was the mischief in the law which the common law did not adequately deal with?
What remedy for that mischief had Parliament intended to provide?
What was the reason for Parliament adopting that remedy?
For example, in Corkery v Carpenter (1950) the mischief rule resulted in a man being found guilty of being drunk in charge of a “carriage”, although he was in fact only in charge of a bicycle. A much more controversial application of the rule is to be found in Royal College of Nursing v DHSS (1981), where the courts had to decide whether the medical induction of premature labour to effect abortion, under the supervision of nursing staff, was lawful. In this particularly sensitive area, whether one agrees with the ultimate majority decision of the House of Lords in favour of the legality of the procedure or not probably depends on one’s view of abortion. This fact simply serves to highlight the sociopolitical nature of the question that was finally determined by the House of Lords under the guise of merely determining the legal meaning of a piece of legislation.
In addition to the three main rules of interpretation, there are a number of secondary aids to construction. This can be categorised as either intrinsic aids or extrinsic aids.
Intrinsic aids: Intrinsic assistance is derived from the statute, which is the object of interpretation; the judge uses the full statue to understand the meaning of a particular part of it. The title either long or short, of the Act under consideration may be referred to for guidance (Royal College of Nursing v DHSS (1981)). It should be noted, however that a general intention derived from the title cannot overrule a clear statement to the contrary in the text of the Act.
Extrinsic aids: Extrinsic assistance is derived from sources outside of the statute. Judges may use dictionaries to identify the meaning of non-legal words, textbooks to seek guidance on points of law and earlier statutes to determine the mischief a later Act was designed to resolve.
Historically, English courts have restricted the use of many other sources. However, judges are now entitled to look at Law Commission reports, Royal Commission reports and the reports of other official commissions which may clarify the specific purpose of a piece of legislation or the real meaning of any provision within it.
In the context of the mischief rule, judges may also consider parliamentary debates recorded in Hansard. They should not, however, take individual or ministerial statements as indicative of the intention of Parliament as a whole.
In addition to the rules of interpretation, the courts may also make use of certain presumptions. As with all presumptions, they are rebuttable. The presumptions operate:
Against the alteration of the common law: Parliament is sovereign and can alter the common law whenever it decided to do so. In order to do this, however, Parliament must expressly enact legislation to that end. If there is no express intention to that effect, it is assumed that statue doesn not make any fundamental change to the common law. With regard to particular provisions, if there are alternative interpretations, one of which will maintain the existing common law situation, then that interpretation will be preferred
In favour of the assumption that a mental element is required for criminal offences: It is a general requirement of the criminal law that, in order for a person to be convicted of a crime, he is proved not only ti have committed the relevant act or conduct, but also to have done this with a blameworthy state of mind. This state of mind is known by the Latin tag mens rea (the mental element).
Against retrospective effect of new law: The courts operate a presumption of interpretation that statues will not operate retrospectively. This principle operates not only to stop people whose conduct was innocent at the time from being convicted by a backward looking Act, but also to stop people whose conduct was guilty at any given time from being free from blame just because an Act decriminalizes certain conduct.
Against deprivation of liberty: The law courts work on the assumption that Parliament does not intend to deprive a person of his liberty unless it is explicitly making provision for such a punishment.
Against application to the crown: Unless the legislation contains a clear statement to the contrary, it is presumed not apply to the Crown.
Against breaking international law: Where possible, legislation should be interpreted in such a way as to give effect to existing international legal obligations.
In favour of words taking their meaning from the context in which they are used: This final presumption refers back to, and operates in conjunction with, the major rules for interpreting legislation considered previously. The general presumption appears as three distinct sub rules which are known as the Rule of Language, each of which carries a Latin tag. The noscitur a sociis rule is applied where statutory provisions include a list of examples of what covered by the legislation. It is presumed that the words used have a related meaning and are to be interpreted in relation to each other. For example IRC v Frere (1969), ‘Interest’ meant annual interest. If the words – ‘other annual interest’ – had been left out, the interest could have meant any interest – weekly, monthly and so on. The ejusdem generis rule applies in situations where general words are appended to the end of a list of specific examples. The presumption is that the general words have to be interpreted in line with the prior restrictive examples. Thus, a provision which referred to a list that included ‘horses, cattle, sheep and other animals’ would be likely to apply to domestic animals such as cats and dogs. Like in the Powell v Kempton Park Racecourse (1899), the words ‘other place’ were held to mean ‘other indoor place’ because the list referred to a ‘house, office, room or other place’ and ‘house’, ‘office’ and ‘room’ are all indoors. The expression unius exclusion alterius rule simply means that where a statue seeks to establish a list of what is covered by its provisions, then anything not expressly included in that list is specifically excluded. For example, In the case of R v Inhabitants of Sedgley (1831) the use of the words ‘lands, houses and coalmines’ excluded application to other types of mine.
So Judges may use all the above mentioned resources and presumptions when they interpreting legislation. But it must be compatible with European Convention on Human rights (ECHR), s.3 of the Human Rights Act 1998 says that judges must read all primary and secondary legislation in a way that is compatible with the ECHR. Thus, if the section or legislation has more than one meaning – the courts must interpret in accord with the ECHR. If the legislation is not compatible the judge notifies the Government Minister and leaves it to him/her to remedy. This interpretive approach, because it is laid down by Parliament, takes precedence over common law methods of Statutory Interpretation. But it does not make common law approaches redundant. For example, the relevant Question of Law may not involve a human rights issue. Once judges have used the above resources and presumptions and they are in line with the ECHR there can interpret legislation.
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