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Presumptions Judges Use For Interpretation Of Legislation
The Delegated Legislation is one of the main topics in Law, it means making the law by some person or body other than parliament but with the authority of the parliament. So, it is necessary to have a good back ground about it as it has an important role in a court. First I would like to remind you of the parliament as it is the main legislative body in the United Kingdom because it is concerned of making new law to meet new situations. The act of parliament and the taken regulations are delegated legislation and are called statutory instruments. This act gives the right to create one of the following types of delegated legislation
1) Order in council; made by queen and Privy Council.
2) Statutory instrument; made b y government ministers.
3) By laws; made by local authority and can also be made by public corporations.
Therefore the delegated legislation issue needs to be examined and analyzed carefully as it has a strong power concerning the applying Law.
Secondly, after you've had understood the first part of the domestic sources of Law which is the parliament (that contains statutory law and delegated legislation). Now I would like to focus more on the second part of the domestic sources which is the courts (that contains statutory interpretation and system of precedent).
Interpretation of legislation is a big subject on which the courts have been involving principles. The interpretation legislation should depend on the way in which it is to be interpreted by the judges.
Moreover, let's get to the core of my paper, an essential process; the statutory interpretation
What is statutory interpretation? Statutory interpretation is an exercise carried out by the court, with the aid of rules and procedures that are intended to decipher ambiguous and vague legislation. The apply legislations to case facts in the interests of fairness and justice. However, statutory interpretation is considered as a skill of language, rather than law.
Who needs to interpret statutes and when is it used?
Judges needs to interpret statues when deciding civil cases directing the jury on points of law for example in criminal cases, Solicitors and Barristers when advising their clients and finally academics and Law students needs it when writing their essay. In addition, judges can interpret acts in both narrowly and hardly or generally and widely, in the aim of developing the law. Language issue can be the case that statutory interpretation requires the judges to infer in vague or incomplete legislation. Additionally it is also important to bear on mind that judges cannot challenge legislation; they have to apply the law; what means that they should act like administers of justice and not creators of law.
The language of act:
The language of act is the source to which parliament must have intended the citizen to refer. Languages of act are the words which parliament has itself approved as accurately expressing its intentions. In addition, if the meaning of these words is clear and does not lead to a result that is manifestly unreasonable, it would be a confidence trick by parliament and destructive of all legal certainty if he private citizen not rely upon that meaning but was required to search through the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that parliaments real intention had not been accurately expressed by the actual words that parliament had adopted to communicate it those affected by the legislation.
Language is not a precise tool as words often take their meaning from context, their meaning can even change over time and of course draftsmen cannot foresee and guess everything.
Here's an uncomplicated example to show you the affects of the words changing meanings: "Every person willfully, openly, lewdly and obscenely exposing his person with intent to insult any female". The word "person" is used twice but giving two different meanings.
There are three basic rules that the courts will employ to determine the intention of parliament:
1-The literal rule: it is the first rule of the statutory interpretation. This type of rule concentrate in what the parliament has said. It is a very simple rule. It means that words should be given their ordinary meaning without trying to guess what parliament actually meant when the act was pulled. (A court will always access and update the common and general meaning of a provision. Therefore, the definition of a provision in the dictionary would be the clearer). Even though following the exact meaning without considering the changes of language sometimes might lead to an unforgiving outcome, you still must follow the act if the words in that act are clear.
For example, in the Fisher v Bell (1960) act a shopkeeper displayed a knife in his window. While the restriction of offences weapons act 1959 made it an offence to sell such a knife. However, he succeeded in arguing that a display in a shop is not an offer for sale. Under the contract law it is an invitation to treat with any offer made by customers.
The role of judges in this rule is to apply the law not to make it but the can have difficulty in deciding parliament's intention.
The advantages of this rule are its simplicity and that you just give the normal meaning of the words. On the other hand sometimes it might lead to bad out comings.
2-The golden rule: golden rule is the second rule that will seek to apply a reasonable and rational result. Therefore, it is used when the words of the statute are ambiguous and it is very hard to see which meaning is appropriate and also when words have only one meaning but to give them that meaning would be wholly unacceptable. However, there have been few occasions where statutory interpretation may have resulted in a bad outcome but for the redeeming affect of the golden rule. Applying this golden rule gives effects to the clear words used by parliament, but will stop short of arriving at a ridiculous decision. As a result it is acceptable for a court to modify the language of the statute or even vary the language to the purpose of avoiding such inconvenience. Furthermore here is a simple example, in this particular case of illustration Re Sigsworth (1953). Here's an example of R v Allen (1872), Allen was accused of bigamy under s.57 of the offences against the person act (1861) which made it an offence to 'marry' while the original spouse was still alive; and not divorce. The word marry had two meanings so, if the word marry was given the first meaning nobody who was already married could be guilty of offence of bigamy because at the time it was legal to marry a second time, it would be impossible for them to do that. The court held that this was silly and said that the word marry must mean go through a formal ceremony of marriage.
The main advantage of this rule that it has more safety out comes than the literal rulein contrast one of its disadvantages is that judges don’t like telling the parliament they are being absurd.
3-The mischief rule:
(There is time where the court will consider the law prior to the enactment of legislation although legislation is reactive and proactive).
Finally, the mischief rule is the third rule of the statutory interpretation that it's aspiring is to look at the intention of the statute.
A more recent example of statutory interpretation under the mischief rule is Smith V Hughes (1960).This case consider the fundamental purpose of the street offences act 1959, in preventing the soliciting sex on the street by prostitute. It was argued that these strippers weren’t actually present on the streets but they were attracting the attention of individuals by tapping on the windows of their properties. So if we conceder this issue by looking at the literal rule of the statutory interpretation, they would fall outside of the scope of the act and avoid liability. On the other hand if we look at this issue by considering the mischief rule the court will state that the intention of the act was to deter prostitution so the action of the prostitutes should be including when interpreting the statute.
Some of the advantages of the mischief rule are finding the meaning that seems to be what parliament intended and it can be extent to the reason of fitting new situations. Other than that, it might sometimes lead to some recompense such as the waste of time and cases might be more costly.
* The literal and golden rules determine what parliament have said, unlike the mischief rule.
The three general approaches:
1- The literal approach: also known as "the constructionist approach". This rule uses cannons and rule of interpretation to establish the meaning of words or the intention of parliament.
2- The mischief approach: also known as "the purposive approach" .It is typical of the way EU law it needs to be interpreted.
3- The integrated approach: also known as "the unified or contextual approach".
Lately courts have integrated the traditional approaches. This approach means that the courts respects the actual words used but rather than stick religiously to them, they interpret them in the context in which they appear, and the underlying purpose of act.
These approaches are not always clearly defined, least of all by judges who often interpret a statute without saying which approach they are using.
Why is statutory interpretation necessary?
Nowadays, statutory interpretation is very necessary because the problems of language have increased and languages are changing over time. Also, it is important because of the uncertainty, ambiguity, broad terms, hurried drafting and unforeseeable development.
Presumptions: they are made by certain assumptions made by the courts. They are used only as a starting point. Such as, a presumption that the crown is not bound by any statute unless it expressly says so, a presumption that legislation does not apply retrospectively, a presumption against a change in the common law and finally a presumption that is required in criminal cases.
An intrinsic aid is one that is from outside the act of parliament which makes it easier to interpret. These are the long/short title, preamble, headings and punctuations. Whereas the extrinsic aids are previous act on the same topic, historical settings, earlier case law and dictionaries at the line.
In consideration of this overview, statutory interpretation is an extremely dynamic and demanding process. When reading a statute, it is worth pitting yourself in the shoes of a parliamentary draftsman to understand the real intention and effect of their work. It is expected that mistakes will be made and clarity will be required. These factors make statutory interpretation an essential skill of judgment.
Gary Slapper& David Kelly, 2009-2010, The English Legal System, Routledge Cavendish, Taylor/Francis Group.
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