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Published: Fri, 02 Feb 2018
Understanding Of The English Legal System
It is important to understand that in the English legal system, parliament is sovereign. The highest court in the U.K. is the Supreme Court, however, unlike in the U.S.A when a statute law is made in parliament and has passed through all the necessary procedures, Judges in the U.K. still don’t have the power to strike it down as unconstitutional. This is due to absence of a written constitution. Therefore judges in the U.K. are bound to interpret statutes that are passed in parliament.
Even though the U.K. parliament develops and processes bills which may later come acts of law, it is the role of the judges to make sense of parliaments statutes in practice, and this is because when drafting legislation it is impossible to cover every situation. It can be said that in the U.K. judges merely enact according to parliament (or E.U) statutes.
On the surface interpreting statutes which are passed from parliament may seem like a fairly basic and easy task. However, this is fairly complicated in reality and when it comes to interpreting statutes which were drafted in theory and then putting them in practice. They are several reasons why this is made so, when statutes are drafted they use words or are designed to be as general as possible in order to cover several situations, due to this generalness in law several problems arise from this. E.g. would be the Dangerous Dogs Act of 1991, as well as that statutes may also be ambiguous, in that some words have more than 1 meaning (may have several meaning). This makes it particular difficult for judges to interpret, Statutes may also have drafting errors which have missed by parliament, changes in language can effect the meaning of words over time, this was a major problem in the case Cheeseman vs. DPP of 1990. It is for these very reasons that judges are needed in order to interpret statutes and insure that the law is enacted according to the wishes of what parliament intended. However, there is room for judicial creativity which allows judges to act with in certain limits of their discretion.
With this in view it is necessary for judges to use certain resources in order to interpret statutes, judges may use two approaches when deciding how to interpret legislation, this the literal approach or the purposive approach. The literal approach is what is mainly used in the U.K. and the purposive approach is what is used in the European community.
The literal approach involves, approaching problems of statutory interpretation by taking the words at their face value, in other word enact according to what is literally written down in the statute. This was used the case of Fisher vs. Bell. The purposive approach however involves looking at the reasons why law was passed and interpreting the words accordingly, here judges try to understand the principles behind the act and what parliament was intending to achieve. This used in the R vs. Registrar General ex parte Smith.
It is important to understand that these two approaches do clash and may result in different outcomes. E.U. law is designed to be interpreted in the purposive approach so where ever E.U. law differs from domestic law, judges have to interpret the cases using the purposive approach as E.U. law is higher than domestic.
With these two approaches in mind it worth knowing that judges have a number of resources available in order to help aid with the interpretation of statutes and help decide the out come of cases brought forward. Many problems may occur when interpreting legislation, such as errors when drafting, ambiguity and the change of language over time. Therefore judges may use and aids and presumptions in order to help interpret statutes.
They are two kinds of aids that judges may use in order to help discover the intentions of parliament and certain matters they can look at in order to help the interpretation of a statute. These are intrinsic aids and extrinsic aids,
intrinsic aids are matters within the statute itself that may help or clear up the intentions of parliament, judges may do this by carefully looking at the statute and considering its long title, short title and preamble (if any), many older statutes have a preamble that sets out parliaments purpose for enacting the statute. Many modern statutes do not contain a preamble (or very brief one). The other useful internal aids are any headings before a group of sections, and any schedules attached the act. These aids may help assist the judge.
Extrinsic aids are the matters that are outside the act which may help with statutory interpretation. This is because some external sources may help to explain the meaning of words and make statutes a lot clearer for the judiciary. Such extrinsic aids are previous acts of parliament on the same topic, the historical setting, earlier case law and dictionaries of the time. Other extrinsic sources are not focused on the meaning of words but more on how attitudes have changed over time such as the use of Hansard, law commission and international conventions (convention on human rights)
Hansard is very useful extrinsic aid, this involved judges looking at various debates in parliament in order to aid with statutory interpretation. However, till 1992 there was a firm rule that courts could not look at what was said in debates in parliament. This rule was first attacked by Lord Denning in the case Davis vs. Johnson. Over time the House of Lords became more relaxed about this rule and Hansard may be used in a limited way to interpreted statutes. Hansard should only be used if the words of the act are ambiguous or obscure or lead to absurdity.
Law reforms are also another extrinsic aid that was not used by judges. However, over time this rule became more relaxed and this was particular in the Black Clawson case in 1975, when it was accepted that a law report could be used to discover the problem or gap in the law which the legislation based on the report was designed to deal with.
Since 1988 explanatory have been produced along aside bills, these notes are a very useful to help judges interpret statutes, these notes usually explain the background to new laws including its main provisions and examples of points that might be complicated within the act. Explanatory notes are not part of the law and this generates debate about whether they should be used as aids. Judges who use the purposive approach
Either than aids, the courts will also make presumptions or assumptions about the law and this can further help the judiciary with regards to statutory interpretation. However, this only the starting point when it comes to statutory interpretation, if the statute clearly states the opposite than it is not possible for the court to apply its presumption.
An important presumption is that common law will apply unless the parliamentary statute clearly states so, if his case then the common law has been altered. An example would be the Leach vs. R of 1912 under the criminal evidence act of 1898 which was later changed by parliament in the criminal evidence act of 1984. Another important presumption is the presumption of mens rea (intent) is required in criminal cases, this means that under basic common law no one can be convicted unless they had the intention of committing that crime. The case Sweet vs. Parsley of 1970 is an example where the defendant was found to have no mens rea, even though statute did not state anything about intent, the House of Lords used this presumption and she was found innocent. They are other presumptions that are made like the presumption that crown is not bound any statute unless the statue says so. As well as the presumptions that legislation does not act retrospectively.
These presumptions are used by judges to help interpret statutory legislation and help judges come to more a clear outcome. It has to be understood that errors will occur and that different methods of interpretation may result in a different outcome. However there is little evidence to deny that judges have a wide variety of resources and presumptions necessary in order to effectively interpret statutes. Yet the method of interpretation of a statute is still up to an individual judge and it is quite possible for 1 judge to use a different approach or presumption than another could result in different outcomes.
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