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Published: Fri, 02 Feb 2018
Essay on Statutory Interpretation
Statutory interpretation is process of interpreting statutes by the judges. The word of interpretation gives us thought that Act of Parliament is difficult to be understood but conversely, the definition of statutes have had very specific words but indeed the judges would still need the statutory interpretation to help them. The reason of this, even how, the words in the statutes are specific but sometimes the words contains ambiguity and vagueness in words. On top of that, each word could give us different meanings; for example, we can find in the Oxford Dictionary where a word would contain at least one meaning. Hence, without the statutory interpretation, a lot of judges would have trouble in deciding their judgments in deciding a case.
In developing the interpretation of any statues, any judges have to follow the traditional rules as their guidelines in determining the meaning of the Act of Parliament. The first rule, the literal rule is the first rule that started and also can be considered as the least problematic method in interpretation. The literal rule actually required the judges to consider what the legislation actually says than it rather meaning. In the context of legislation, judges would have to consider their literal meaning that it are in plain, ordinary, everyday meaning. However, the judges can’t adjust the meaning of the statues to achieve the court’s view that they consider as acceptable result. The main advantage of the literal rule is that it fits easily in the constitutional principle without causing any much of problems. Even how, Cross’s formulation was able to establish the limitation of literal rule. In his formula, he stated that the judge would have to give effect that only involves grammar based on statues or the technical meaning of the words; he must also determine the extent of the general words with reference. From the statement of the Cross about the formula, it is able to be criticise that, all the interpretation would not be interpreted in phrases or sentences instead it would be interpreted in isolated words. Thus, when the isolated words are combined together, the meaning of the statute would make no sense due to the comparative clear meaning. On top of that, we could also criticise that, even, the literal rule that involves an ordinary meaning, would help to draw a clear distinction line between the ordinary and technical words in statues and this also involves in the discretion in the judges. Hence, it would certainly lead to uncertainty. We also involve technical meaning of words, then, it’s unable to obtain the ordinary meaning anymore. Furthermore, criticisms did not just only come from Cross’s formulation but also the case of Whiteley v Chappell. In this case, the defendant was charged under an offence to impersonate ‘any person entitled to vote’. The defendant had pretended to be a person whose name was in the list but is already dead. Court held that, he was not guilty since the dead person is not, in the literal meaning of words, ‘entitled to vote’. Through this case it was able to prove that the literal rule actually leads to absurdity. To conclude, the literal rule was not a good rule to follow as it provide only one interpretation. Besides than that, the intention of the legislature would not be shown if the judges would to follow this rule. Lastly, it leaves little room for the judicial law making. Next, the other rule is the golden rule. The golden rule is only be used if the judges apply the literal rule and finds that it lead to absurdity then the judges would have to need to proceed to use the golden rule. Even how, before the judges could do that, the judges must determine the genuine difficulties before proceeding to the golden rule. The use of the rule, actually involves the judges to find what the statute should have said or mean rather than what it actually already stated there. In golden rule, we would able to find there are two versions of golden rule. One of it is narrow meaning; this is only used where there are two apparently contradictory meaning. The other versions, is the wider meaning, where it is resorted when there is only one possible meaning to a provision. In this rule, we find that it help to avoid absurdity or abhorrent result. On top of that, which is also the most important that is the decision of the case most of the time is able to refer to the Parliament intention. The golden rule would also help to closes the lacuna which is also known as the loopholes in the law. However, this rule also helps the judges to develop their creative thinking where the judges can add or change the meaning of the statutes anytime. This would breach the separation of power where no clear distinction is drawn anymore. Besides than that, when there is absurdity happen in the case, the judges won’t have the power to intervene provide justices to the party. Even how, the absurdity issues can be resolve in the golden rule but another issue at the same time had risen in the golden rule, the injustice. The last rule to use is the mischief rule if neither literal rule nor golden rule could help to solve the judge’s problem. The mischief rule is known as the most flexible rule and it is established in the Heydon’s case. The mischief rule would only be use if there is still ambiguity even though it had been followed in the literal rule and golden rule. This rule goes much further than the golden rule in the sense of the rule would further investigate the position of the statute in relation to the law as a whole and gives court more leeway in their construction of statute. The court’s objective then would involve on the purpose of the statute and the intention of the legislature rather than depending on the words before them. On top of that, the scope of the rule is that it did far more than allow judges to choose between the different meanings of the statutory language or infer into the statute a small number of words. It is a flexible rule where it could be adapt it many kind of cases. However, this rule also has many disadvantages. This rule would indirectly make the judge to have the role to make the law. Thus, the separation of power would be voided in this kind of circumstances. Lastly, the judges would also able to bring in the subjective case such as the morality and prejudice.
In conclusion, even though, United Kingdom involves so many rules in the statutory interpretation but none of them help to reduce the problem. There would always be injustice or absurdity even though the rules are been followed. This is because the rules are slowly helping the judges to develop their creative thinking and this should not be happening where in theoretically, judges shouldn’t be making law but in the golden and mischief rule it had help to developed this kind of issue and it is certainly unpredictable. On top of that, the court could actually look into the Hansard to determine what the mischief was that Parliament was trying to remedy but the court refused to seek the Hansard as the guide, then, how can we weigh whether there is justice in the law where the problem already started at the first ground from the statutory interpretation. Thus, no matter how many rules that is develop to avoid the problems stated above, there won’t be a way to help to solve the issues.
In statutory interpretation, there are two approaches which are the literal and purposive approach. The purpose of the both approaches was to determine how judges should go about determining the meaning of a statute. Since, United Kingdom is one of the European Union countries and with that the EC law would require more shift on the purpose approach. Hence, the purposive approach is widely used in interpreting the statutes rather than the literal approach. The purposive approach rejects strongly on judges limitations on searching the meaning of the literal meaning of the word in the legislation itself. The approach is to enable for the judges to look beyond the words of statute in search of the reason of enactment and from there the meaning of the word would be construe on the purpose of such enactment and as to give it effect. In these jurisdictions, the legislation tends to set out the general principle and the fine details would leave to the future to fill in the gap by the judges later on in later cases. Hence, the purposive approach was not set to make sure that the approach is also to cover the purpose in future but the purposive approach is to make sure it cover the purpose now. Thus, to conclude, in order for the judges to interpret the statutes accurately, they must understand why the Parliament passed the statute then from there the judges would be able to determine the purpose of the enactment of the statute. Hence, the statute would able to be applying in the correct way of what the Parliament hope for.
History Of E.U & Development Of U.K In Becoming Member Of E.U
The primary reason on why European Union was established was that European countries would like to end the bloody wars in Second World War. There are six countries who founded the European Union. They are Belgium, France, Germany, Italy, Luxembourg and the Netherlands. On the 9th May 1950, Robert Schuman, the Foreign Minister planed to cooperate with the six countries. His plan was to sign a treaty with the six countries in running the heavy industries of coal and steel under the common management. From there, the six countries can’t make their own nuclear weapon to fight against each other. After the signing the Coal and Steel Treaty, the six countries expanded to economic sector but no long after they signed another Treaty of Rome and formed the European Economic Community (EEC) and European Atomic Energy Community (Euratom) to enable goods and services could move freely in the six countries. In the 1950s, the European Coal and Steel Community united the European countries economically and politically to secure the lasting peace. However, during that time, United Kingdom, did not want to enter negotiations in Robert’s plan because United Kingdom objected to the supranational role envisioned.
As time goes by, in the 1960s when the EEC’s apparent economic was very successful, then the United Kingdom intended to enter negotiations to enter the membership of the European Union. However, British membership was vetoed by the French president, Charles de Gaulle that he claimed that the British were having a good relationship with the United States of America. In 1967, they again applied for the membership but they were turned down for the second time. However, when Charles resigned and his position was replaced by Georges Pompidou in 1969. Georges then held a summit meeting of the leaders in the Netherlands where his aim of the summit meeting was to create a way for the creation of a permanent financing arrangement for the E.C. On top of that, he also aimed for development of a framework for the foreign policy cooperation among the member nations and open negotiations for memberships with the Great Britain, Ireland, Denmark and Norway. Then, that is only when the United Kingdom eventually enter the European Union membership.
Effect On U.K Due To E.U Membership
After the membership with the European Union, United Kingdom had a drastic changed in their system in ruling the nation. One of the most highlighted effects after the E.U membership was the statutory interpretation. We know that in U.K does not have written constitution and the Parliament is above all. Parliament is the place where the law is making in any form but when U.K entered E.U, the conditions of membership were stated that all E.U law are automatically U.K’s law without going through the Parliament. On top of that, the E.U law is binding to all the member states. However, we might ask what if before U.K enters E.U, U.K had law now that conflicts with E.U law? This is when the problem had arose, since, the day of membership U.K courts must make sure that they would depart Orthodox principles because they do not want to conflict with the E.C law. We would see that judges would use the statutory interpretation and their creative mind to slightly modified the meaning of the statutes just because they do not want to conflict with the E.U law. Therefore, in this case, the statutory interpretation had been misused where in actual purpose was to help the judges to interpret the statute based on their main purpose that the Parliament wanted to apply but due to E.C, the judges would have no choice but to modify it. Thus, the real purpose of the statute would not remain. In this sense, if there is any conflict, the court would not choose to have new constitution, however, they would modified the version of the statute to achieve the sovereignty of Parliament. This argument can be argued using the case of Factortame v Secretary of State for Transport (No.2).This case is that the applicants who were controlled by the Spanish of nationals. This problem arose after U.K enter the E.U where it guaranteed the freedom of goods, services, people and capital and this case had challenged the validity of the Merchant Shipping Act 1988 on basis that in contravened the E.C Treaty and had deprived their rights that were stated in the Community law. The applicants immediate applied for an interim injunction to restrain the Secretary of State to enforce the Act. However, the House of Lords overruled the suspension held that the Merchant Shipping Act 1988 was in force that it must be interpreted in accordance with the E.C provisions. For this case, we already noted that U.K. Parliament not only lose their sovereignty indirectly but at the same time the statutory interpretation in interpreting the Merchant Shipping Act was not the purpose that the Parliament had intended. This shows that the effect of the E.U law had cause U.K cases to be decided in absurdity with regard using the statutory interpretation.
Therefore, we could also see that the limitation of the sovereignty Parliament was accepted when it enacted the European Communities Act 1972 was entire voluntarily. At the same time, it becomes the duty for the U.K to override any rule of national law found to be conflict directly with the Community law.
The other effect was in the Human Rights Act 1998. Human Rights Act 1998 was passed to protect the rights of the people, unfortunately, till a certain extent, it did protect the rights of the people but again it is not so simple in practise .Firstly, in section 3, the court must use the statutory interpretation to interpret legislation that ‘so far as is possible’ compatible with the Convention rights which was defined under the Act. This section had make rules of interpretation must take as the second place requirement of compatibility. Besides than that, the more meaning after the interpretation, the judges must have to choose the meanings that most conform the convention. Hence, this will show that how far that a judge can expand the meaning where it won’t be able to have open room for interpretation. Secondly, in section 2, the court must ‘take into account’ that the jurisprudence of the European Court of Human Rights together with opinion and decisions of the European Commission of the Human Rights and decisions of Committee of Minister with regard to about Convention rights, when deciding any question about Convention rights. Lastly, in section 4, the judges was able to interpret the statute that had contravene with the Convention rights of the High Court, Courts of Martial Appeal, Court of Appeal, House of Lords or Privy Council can make declaration of incompatibility but no one can make it as invalid Act.
Once again, we can see that, even though, the Human Rights Act 1998 main purpose was to protect people’s rights but due to the membership with E.U, the purpose of the Human Rights Act 1998 does not matter anymore, as the first thing first is that it must not contravene with any E.U law and this also to be determined through statutory interpretation then we can also argue that what’s the use of the statutory interpretation? Why not just pass any Act that would not contravene with the E.U then judges would not need to waste time on to interpret the statutes creatively. However, this matter would not be able to resolve when it involves in the political party.
Statutory interpretation primary main objective was to help judges to interpret on the purpose of the Act but till today this objective still stand but at the same time there is something holding it back, it is the U.K’s membership with E.U. Due to this, E.U had been somehow rule U.K and U.K is somehow like losing its power in ruling its own nation. Anything that happened such as any act contravene with E.U, U.K had to make sure using statutory interpretation in hope to modify the Act until the purpose of the Act had been blurred. This had made so many decisions in cases to be absurd or better be known as injustice but yet again what can we do to resolve such things from happening. The answer to that would never be seen or heard as long as U.K still remain in E.U. hence, no matter how hard U.K tried to solve this issue, it would not succeed because we can see that how U.K afraid to conflict with E.U law. Therefore, to conclude, U.K would always lies in shade of gray with regards to the rules relating to statutory interpretation due to its membership with E.U.
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