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Published: Fri, 02 Feb 2018
“The judge’s role in England
The principle of parliamentary sovereignty is fundamental in English legal system, and this is reflected in statutory interpretation. According to Lord Scarman, “In the field of statute law Parliament makes and unmakes the law, the judge’s duty is to interpret and apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice when differing constructions which in his judgment best meets the legislative purpose of the enactment.” [i] This statement makes it clear that judges should apply instead of rewrite statutes, but there may be different ways of application. There is a trend in recent years showing that judges may be gaining more discretion, but does this mean that judges can rewrite statutes? I have to contend that this is not possible and the reasons will be discussed in the following.
Traditional Rules of Statutory Interpretation
Literal Rule, Golden Rule and Mischief rule are the three main traditional canons of statutory interpretation.
Literal Rule is where the words contained in the statute are applied literally. It is the task of the court to give the words to be constructed their literal meaning regardless of whether the result is sensible or not. [ii] This rule had been the dominant rule for the past hundred years or more as it claims to prevent judges from interfering with statute and by implication, the legislature. This shows adherence to parliamentary sovereignty. However, there are severe criticisms on literalism. The main argument is that it is based on a false premise that words have plain, ordinary meanings apart from their context, even a dictionary provides several meanings for the same word and thus the ‘plain-meaning’ theory is invalid and unrealistic.
This gives rise to the Golden Rule, where the literal rule leads to an absurdity; the court is allowed to find other meanings by adapting the language of a statute. But this leads to the objection that the rule is erratic as there is no guidance as to what an absurdity is and what actions to proceed by courts after finding one. Zander describes it as “an unpredictable safety-valve to permit the courts to escape from some of the more unpalatable effects of the literal rule” [iii] . There is a danger that judges create laws instead of following them.
Since both the Literal and Golden rules are not ideal for judicial decision making; the Mischief Rule, called the Purposive Approach nowadays is employed. The court should interpret statutes in the sense as to what mischief the law is trying to regulate. It is designed to get the court to consider why the Act was passed by parliament and then to apply that knowledge in giving the meaning that best accords to the true social purpose of the legislation. This is now the dominant interpretive rule that judges employ as it helps to avoid absurdity and injustice, and promotes flexibility. Yet there are still questions posed by this approach, the main question being where the court should look to discover ‘the mischief’?
Pepper v. Hart
In 1993, the case of Pepper v. Hart overturned the rule against consulting Hansard when there is an ambiguity in the legislation. The Hansard is the official daily report of parliamentary debates, and therefore a record of what was said during the introduction of legislation. This was thought to be able to clearly disclose the mischief aimed at by the legislation.
Lord Browne-Wilkinson who gave the leading judgment argued that under the Black-Clawson the courts were already allowed to look at White Papers and official reports in order to find the mischief. There was not much difference between such materials and a ministerial statement in Parliament and it would be wrong for the court to ‘blind’ itself to what the parliament clearly indicated. [iv]
Lord Mackay, the then Lord Chancellor, was the only one to dissent. His view was that this would lead to extra expense due to more time required for lawyers and court resources. This was proved by Professor Michael Zander in 2000 where in a study of sixty cases, the references almost never helped to resolve the ambiguity of statutory intent.
Lord Steyn who originally supported the decision in Pepper v. Hart later criticised it as it gives pre-eminence to the Government Minister’s interpretation of the statute and ignore dissenting voices of opposition MPs. The Minister only spoke in the House of Commons and we should therefore be careful not to treat ministerial statements as the intention of Parliament. [v]
These traditional rules are used as guidelines and it is the judges who determine the outcome. However, these principles that judges rely on are coherent with the concept of parliamentary sovereignty and point to the fact that judges should be applying the statutes and never to rewrite them.
Human Rights Act 1998
This Act incorporates into UK law the European Convention on Human Rights. It represents a fundamental change in the way of approaching the task of statutory interpretation. Section 3 sets out that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Although courts do not have the power to repeal an incompatible statute with the act, they can issue a declaration of incompatibility. But the extent that judges should strain the meaning of the words in order to obtain compatibility is not clear, different judges have taken different approaches to this. An example is R v. A (No. 2), two different approaches emerged in the House of Lords on whether s.41 of the Youth Justice and Criminal Evidence Act 1999 had to be read subject to s.3 of the Human Rights Act. [vi]
This ambiguity may lead to arguments that judges can actually rewrite statutes to make them compatible. However, it is quite clear that judges should be adhering to parliamentary sovereignty and only tries their best to apply the statutes in a sense that is compatible with the act. Jack Straw, the Home Secretary, stated that the Government did not intend that the courts in applying s3 should “contort” the meaning of words to produce implausible or incredible meanings. [vii] The basic idea is still that of judges not interfering with the legislature.
Search of Meta-Principle for Statutory Interpretation
Due to the constraints mentioned in the above instruments of interpretation, we may try to look for a Meta-Principle. Neil MacCormick introduces the theories of coherence and consistency to bridge the gaps in the law. [viii] He views coherence in terms of unity of principle in a legal system, contending that a statute should fit well in the legal system. This is more local in nature as principles differ in different branches of law. [ix] Consistency on the other hand requires that no two statutes can be contradictory. This systematic approach looks at statutes as parts of a whole so as to maintain flexibility and the unity of an entire legal system and not departing from the will of Parliament. This is to ensure predictability and certainty.
Others, such as Ronald Dworkin, argue that interpretation must be in line with political morality. [x] Dworkin states that the aim of legal interpretation is to constructively interpret the social practice of law and there may be different ‘right answers’ for different interpreters. [xi] But this doesn’t mean that judges could rewrite statutes, they are only applying statutes according to how they interpret them. Dworkin proposes a theory of coherence under “law as integrity” where law should be interpreted as created by a single author, the community personified. The law is open to morality and thus emphasises on flexibility and substantive justice. It may seem that judges have more discretion as they can move away from literalism, but the moral and political principles may actually set tighter constraints.
It seems to be impossible to find a Meta-Principle and achieve certainty as law application is mostly subjective and unaccountable. This view is reflected by Legal Realists who think that law should be understood sociologically and the judge’s background may affect their decisions, such as the case of Pinochet Ugarte  4 ALL ER 897. Judges have their own moral convictions and pre-dispositions and thus the canons of interpretation are merely rationalisations of their judgments. The Critical Legal Studies movement also argued that interpretation is not possible since law is inherently political and it only gives weight to dominant principles.
This seems to point to judges rewriting statutes on face value, but when we consider the issue thoroughly, judges are actually applying the statutes according to their moral or political interpretation. Statutes are not altered, only the process of application is differed for the judges.
After looking at all the possible approaches to statutory interpretation, it is clear that judges in England have a certain degree of discretion in applying statutes. However, this does not mean that judge’s role is to rewrite statutes. The principles and rules are merely guidelines to the interpretative approach judges could take, it doesn’t change the fundamental idea of Parliamentary sovereignty and judges are only required to apply statutes as they see fit.
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